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THE 

GOVERNMENT OF 
ENGLAND 



R. K. GOOCH, D. PHIL. COXON.) 

PROFESSOR OF POLITICAL SCIENCE 
UNIVERSITY OF VIRGINIA 




NEW YORK 
D. VAN NOSTRAND COMPANY, INC. 

250 FOURTH AVENUE 



COPYRIGHT, 1937, BY 
D. VAN NOSTRAND COMPANY, INC. 



All rights reserved. No part of this book may be 
reproduced in any form without permission in 
writing from the publisher, except by a reviewer 
who may quote brief passages in a review to be 
printed in a magazine or newspaper. 



First Published, July 1937 

Rcfrintctt, May 1941, April 

January 



POINTED IN THE UNITED STATES OF AMEBICA 



To 

THE STUDENTS OF GOVERNMENT B4 
PAST, PRESENT, AND FUTURE 



PREFACE 

This little book is intended to be a text-book. It does not 
incorporate the results of any special studies or particular re- 
searches. It has been written with no other thought than that 
of possibly being helpful to American college and university stu- 
dents. More particularly, it is offered to American undergrad- 
uates who, in most cases, will have had some formal instruction 
in respect of the American Constitutional System. If, by chance, 
the general reader anywhere or the non-American student should 
find the little volume either interesting or instructive, the result 
would be pleasant surprise. 

Presumably, all American college and university students and 
teachers of political science are in some degree troubled by the 
problem of method. The question of emphasis in respect of 
"fact" and principle is, apparently, ever with us. Little help is 
to be found in the platitude that both are important. The real 
problem is to ascertain the best combination. The solution of- 
fered here pretends to no finality. It would be a miracle if 
many teachers should not discover fault to find. The contents 
of the volume are based merely on the experience of one teacher. 
They are based on what that experience has suggested under- 
graduates ought to be told and on what that teacher's memory 
suggests he wishes he had been told, when he w r as an under- 
graduate. 

The assumption is made here that, in American education, a 
shift of emphasis ought to take place when a student has left 
school and entered a college or university. The division may 
be arbitrary, but it ought to be made somewhere. The shift of 
emphasis involves a distinction which cannot be rendered banal 
through familiarity, the distinftion between "learning" and 
"understanding." College and university students ought, with- 
out neglecting the former, to place their primary emphasis on 
the latter. The present volume attempts to apply that assump- 
tion. College and university students who have studied Ameri- 

vii 



Vlll PREFACE 

can Government at a college and university level encounter, 
when they come to the study of English Government, the prob- 
lems of universal principles, standards of comparison, and com- 
parative judgments. The problems w;ould seem somewhat to 
differ according to whether differences or similarities are pri- 
marily involved. Thus, in the present volume, the attempt is 
made to treat fundamental differences between American and 
English Government, so far as possible, in terms of principle. 
Without any intention of encroaching upon the function of the 
teacher, analysis and explanation, rather than description, are 
stressed. At the risk of some appearance of superficiality, facts 
are somewhat less fully set out, illustrations and anecdotes are 
reduced to a minimum, and allusion is employed with a view to 
stimulating thinking* and to provoking enquiry. On the other 
hand, where American practice has not departed fundamentally 
from its English inheritance, as for example in connection with 
the Judiciary and Local Government, the advantages of compari- 
son appear to be somewhat different. Hence, chapters that are 
concerned with those subjects tend to be more fully descriptive. 
In the one case as in the other, the sole effort, it may be re- 
peated, has been that of being helpful to the student. 



CONTENTS 

PAGE 

PREFACE . vii 

PART I. INTRODUCTION 

CHAPTER 

I. THE STUDY OF ENGLISH GOVERNMENT . . 3 

II. THE BASES OF ENGLISH GOVERNMENT . . 7 

The Land ........ 7 

The Population . . . . . . 1 1 

III. BRITISH I^TIONALITY AND CmzitosHip . . -13 

PART II. POPULAR PARTICIPATION IN ENGLISH 
GOVERNMENT ( 

IV. VOTERS IN GREAT BRITAIN . . . .21 

English Suffrage History . . . . .22 

Existing Suffrage Provisions in England . ,26 

V. POLITICAL PARTIES IN GREAT BRITAIN . . . 30 

Party History 35 

Party Programmes . . . . . .41 

Party Organization . . . . . . 45- 

PART III. THE ENGLISH CONSTITUTION 

VI. THE NATURE OF THE ENGLISH CONSTITUTION . 53 

Introductory . . . . . . 53 

The Law and Conventions of the Constitution . 56 
VII. THE ORIGIN AND DEVELOPMENT OF THE ENGLISH 

CONSTITUTION . . . . . . 71 

PART IV. THE CENTRAL GOVERNMENT 

SECTION 1. THE EXECUTIVE 

VIII. THE FORMAL EXECUTIVE: THE KING . . 93- 
IX. THE REAL EXECUTIVE, i. POLICY FORMING: 

MINISTRY, CABINET, AND PRIVY COUNCIL . 109 

ix 



X CONTENTS 

CHAPTER PACE 

X. THE REAL EXECUTIVE. 2. ROUTINE: THE CIVIL 
SERVICE 132 

SECTION 2. THE LEGISLATURE 

XL THE STRUCTURE OF PARLIAMENT . . .150 

Composition 151 

Organization 164 

XII. THE FUNCTIONS OF PARLIAMENT . . .172 

The Making of Law 172 

The Administering of Public Finance . . .185 

The Controlling of the Executive . . . 199 

XIIL THE POWERS OF PARLIAMENT , . . . 206 

XIV. IMPERIAL RELATIONS . . . .219 

SECTION 3. THE JUDICIARY 

'XV. THE ADMINISTRATION OF JUSTICE . . . 229 

Judges and Courts 229 

Administrative Justice ..... 246 

PART V. ENGLISH LOCAL GOVERNMENT 

XVI. LOCAL COMMUNITIES AND THEIR AGENCIES . 253 

Areas 254 

Agents and Organs: Local Legislatures . . 259 

Local Executives . . 265 

XVII. THE FUNCTIONS OF LOCAL GOVERNMENT . . 272 

Legislative Functions: Law-making . . .272 

Administration of Finance 275 

Control of the Executive . 280 

Executive Functions 281' 

XVIII. GENERAL ACTIVITIES OF LOCAL GOVERNMENT . 283 

XIX. THE POWERS OF LOCAL GOVERNMENT . . 292 

ACKNOWLEDGEMENTS 301 

BIBLIOGRAPHICAL NOTE 303 

INDEX .......... 309 



PART I 
INTRODUCTION 



CHAPTER I 
THE STUDY OF ENGLISH GOVERNMENT 

The yokel who was, on first acquaintance, contemptuous of 
Shakespeare, because, as he said, Shakespeare had merely strung 
together things that people have been hearing all their lives, 
suggests to the American student of English government a 
warning and a point of view. The warning is a warning to 
the effect that familiarity ought not necessarily to breed con- 
tempt. The point of view is one based on the simple proposi- 
tion that failure to think things in their proper order, chrono- 
logical or otherwise, leads easily to confusion in thinking. 

The American student of government who comes for the 
first time to the study of English government will almost cer- 
tainly be struck by many resemblances between his own govern- 
ment and that of England. Many of them involve things he 
has known all his life. He will also encounter many dissimilar- 
ities. Which of the two he will find more striking and inter- 
esting is likely to be largely a matter of temperament. Some 
people who are faced with the opportunities for comparison 
that inevitably face everyone find a certain real pleasure in 
observing differences. To them variety seems to be the spice 
of life. Other people undoubtedly defive genuine satisfaction 
from viewing things in such a way that general similarities 
manifest themselves. The order and the unity of things are 
to such persons greatly impressive. In reality, such a classi- 
fication of people is, as is so often the case with classifications, 
an over-simplification. No person sees nothing but likenesses 
or nothing but differences. Both tendencies will doubtless be 
found in all persons intellectually awake. It is merely that one 
tendency appears to be more pronounced in some people, the 
other in others. If the question should be raised of which 
tendency ought, without disregard for the other, principally 

3 



4 INTRODUCTION 

to be cultivated by students, the answer ought almost certainly 
to be returned in favour of similarities. The attempt to appre- 
hend evidences of unity in experience is directly in line with 
the true aim of education, wjiich, though it is often expressed 
in many varying ways, will readily be agreed to involve the 
cultivation of a scale of values that render as clear as possible 
the distinction between accidentals and the truly fundamental. 

The American student of government, as he learns things 
about English government, is undoubtedly frequently tempted 
to reflect that a thing is done in England just as we do it. To 
such a reflection in itself there is no great objection. At the 
same time, the tendency involved is a bad one. It ought not 
to become a habit. When, in matters of government, similar- 
ities are to be obseiVed, the fact is that we do things like the 
English, rather than the other way round. It is a commonplace 
that English experience, especially in legal and governmental 
concerns, forms the background of American principles and 
practices. It is. a further commonplace that an extremely im- 
portant and interesting aspect of English political and constitu- 
tional history has been its long, gradual, almost unbroken 
development. As a matter of fact, this history was, up^to a cer- 
tain point, literally our own history. At that point, it is true, as 
has been well said by an American historian, 1 the stream of 
history divides, one branch flowing in this country, the other 
continuing to flow in the Mother Country. Nevertheless, the 
two branches are not unconnected. Numerous interconnections 
continue to be formed. In other words, even at the present 
day, many interrelationships exist between American and Eng- 
lish experience, many mutual influences are at work. This, in 
turn, is largely possible because of the very fact that the two 
branches, when they are traced backwards, come to a common 
point. 

Dissimilarities in respect of American and English govern- 
ment are, of course, instructive. 2 At the same time, more 
warning is necessary, for more care needs to be taken, in con- 

1 G, B. Adams, Constitutional History of England (Revised ed., New 
York, 1934). 

2 Cf. especially in this respect Ch. XIII, p. 209, infra. 



THE STUDY OF ENGLISH GOVERNMENT 5 

nection with differences than in connection with resemblances. 
It is with respect to the first, not the second, that comparisons 
involving judgments of relative value are odious. Generaliza- 
tion, especially hasty generalization, is not only frequently a 
mark of superficial and confused thinking j it is often an indica- 
tion of a reprehensible attitude. Where a person generalizes 
about differences between his own country and another, he not 
only often appears as uninformed and mistaken to a person of the 
second country as such a person would appear to him in analogous 
circumstances j he also not seldom appears to assume an obnoxious 
attitude of fancied superiority that is distasteful and irritating to 
others and that is detrimental to mutual understanding. 

r ~ncernirig the matter of mutual understanding amongst 

sople of various nations, some simple paraphrase of Mark 

I's remark about the weather sefcms to apply. There has 

a great deal of talk about it, but no one seems to have 

done very much about it. No small beginning would be made 

if some kind of moratorium could be declared on the making of 

adverse generalizations about other countries. The late G. K. 

Chesterton made in this connection a suggestion of considerable 

merit. -He proposed in effect that any person who felt inclined 

to utter an adverse generalization about another country should 

always introduce it by the formulation of a generalization about 

his own country that is at Jeast equally unfavourable. 

Nothing could be more natural than that a student of political 
science should begin with a study of the government of his 
own country. At the same time, such priority for his own 
country clearly does not involve any necessary superiority. 
Indeed, the fact is perfectly manifest that two or more students 
of different countries who assume, each in his own case, that his 
government is superior to all others cannot all be right A 
student of government does not extend his study from his own 
country to others for the purpose of establishing the superior 
importance of his native land. Indeed, he ought probably to 
be prepared to discover and to admit a certain amount of 
inferiority. He cannot be seriously disturbed by the reflection 
that one country rather than another is his own largely because 
of the accident of birth. There is a false as well as a true 



INTRODUCTION 



patriotism. It is enough for a student possessed of true patriot- 
ism to study the governments of other countries with a view 
to - increasing his understanding of government in general and 
of his own in particular. 

An American student of political science requires no elabor- 
ate argument in order to be convinced that English government 
is the government to which he ought to direct his attention 
next after his own government. The very fact of a common 
history and background is justification enough. At the same 
time, English government deserves study in its own abstract 
right, so to say. This is supported by* the fact that serious 
students of all countries, whether or not they are in the so-called 
Anglo-Saxon tradition, would probably agree in awarding to 
England the place of next importance after their own countries. 
The fact is that only a false patriotism can deny to England, 
in matters of government, a place of preeminence. Just as 
different individuals possess different talents and particular 
nations display their peculiar excellences, the specialty of Eng- 
land has been, and is, government. The English have mark- 
edly excelled in governing themselves and in governing all 
kinds of other peoples. At the very least, they have been in a 
high degree successful. It seems correct to say that they possess 
ta genius for government. Some people, it is true, tend to attri- 
bute English success in matters of government to luck \ but, as 
Napoleon once somewhere observed, mastery , over luck is.a.sign 
of genius. However that may be, rich experience, long tradi- 
tion, and largely unbroken historical development, combined 
with genius or luck or whatever it may be, have given to Eng- 
lish political institutions a quality that can justly claim primary 
attention from all serious students pf government. 

Government, whether in the sense of an organization or of 
a process, is well known to be a principal concern of students of 
political science, whose true subject is The State. The reason 
for this is, of course, that government is 'the most vital element 
of the state. At the same time, the state is normally recognized 
to contain two elements that form its physical bases. They 
demand some attention in the case of any particular state. They 
are territory and population. 



CHAPTER II 
THE BASES OF ENGLISH GOVERNMENT 

I. THE LAND 

The influence of geography on government has been sug- 
gested in numerous learned works. Nevertheless, no great 
learning indeed, no great imagination is required, in order 
to apprehend the importance of the fact that Great Britain is 
an island. A traditional connection with the sea has for long 
centuries influenced, and continues to influence, in countless ways 
the British way of looking at things. The isolation of an insular 
position has, of course, been largely responsible for a feeling of 
relative security. This feeling, in turn, has corresponded 
closely with fact. The island has been secure. Though, in its 
early history, it was often overrun, it has not in any real sense 
been invaded since the Norman Conquest. The simple connec- 
tion of this with the important fact, worthy of frequent repeti- 
tion, that English political and constitutional history has been 
a largely unbroken development, is manifest. 

Perhaps the simplest fundamental way of viewing the con- 
nection between geography and government is in terms of a 
political distinction made by Aristotle. The Father of 
Political Science differentiated the state as viewed in terms of 
mere existence from the state as thought of in terms of its 
ultimate purpose. Under the first aspect, the state "makes life 
possible." The ultimate purpose of the state is to further the 
"good life." Yet, as is so often the case with distinctions, the 
two aspects of the matter are closely interconnected. Thus, 
when mere existence is precarious, when the problem of mere 
existence is so acute as to demand primary attention, then the 
matter of the good life tends to sink into the background. The 



INTRODUCTION 



great problem of liberty, to take only one simple example, 
manifestly assumes a different aspect in conditions of peace 
and in the conditions present in a besieged city or a country 
at war. Serious effort to make life good must assume a certain 
relative stability, a certain minimum of security. It is probably 
not too much to say that the conditions growing out of the 
insular position of England have been responsible for the fact 
that England, in greater degree than any other country, has 
developed the governmental institutions and principles which 
seem best adapted to furthering the good life. 

The core, so to say, of the territorial basis of the English 
governmental system is composed of Great Britain and Nor- 
thern Ireland. Thus, the system being monarchical in char- 
acter, its technical designation is the "United Kingdom of 
Great Britain and Northern Ireland." This designation, in 
turn, emphasizes the priority of two British islands. Though 
the British Isles, lying off the west coast of Europe, from which 
they are separated by the English Channel and the North Sea, 
consist of some five th_Q]isaai.isiands, the principal one of them 
is Great Britain j and the second in importance is Ireland. 

Since the age of discovery, at the beginning of modern times, 
the British Isles have lain across the trade routes of the world. 
From this point of vantage, the British have pushed their trade 
to all corners of the earth, and they have established possessions 
in all parts of the world. These possessions, of course, make 
up the British Empire. At present, this Empire covers about 
one-fourth of the habitable surface of the earth. 

The island of Great Britain falls into the three principal 
divisions of England, Wales, and Scotland. These divisions, 
which are geographically and historically overlaid with rich 
and varied associations, and memories, are, for governmental 
purposes, of minor importance. The principality of Wales, the 
rugged and mountainous nature of which rendered it always 
a strong bulwark against invasion, may be regarded as having 
been assimilated to England since the end of the thirteenth 
century. Though its conquest was not altogether completed 
at that period, the eldest son of the King of England has since 
that time been the Prince of Wales j and, since the same date, 



THE BASES OF ENGLISH GOVERNMENT 

Wales has been, for purposes of government, divided into the 
same kinds of local communities. 1 Scotland, after being for 
centuries an independent and frequently a hostile kingdom, 
became subject to a common King with England and Wales 
at the beginning of the seventeenth century and became united 
with them under a common government at the beginning of 
the eighteenth. 

The principal part of Great Britain is England. According 
to the accepted etymology, its name is derived from one of {he 
Teutonic tribes, the Angles, which, beginning in the fifth cen- 
tury, descended on the island, overran it, and finally settled it. 
It is, as Julius Caesar described it, roughly triangular in shape. 
Its greatest east and we^t width is 280 miles. Its length from 
north to south is 365 miles. England, together with Wales, 
is about the size of Scotland and Ireland combined, and of 
approximately the same area as the State of Michigan. With- 
out Wales, England is of about the same number of square 
miles as the State of New York. It may be thought of as 
roughly divided into a North and South, the South primarily 
agricultural, the North industrial. 

Ireland became united with Great Britain at the beginning 
of the nineteenth century. In 1921, about five-sixths of the 
area of Ireland, frequently referred to as Southern Ireland, 
assumed what is known as "Dominion status," under the name 
of the Irish Free State. The remaining sixth, Northern 
Ireland, remains an integral part of the governmental system 
of the United Kingdom. 2 

The principal divisions of the United Kingdom, 3 for pur- 
poses of government, are Counties. This name, which is of 
French origin, came into use lifter the Norman Conquest. It 
is, -in general, the same name as that of Saxon origin, the 
Shires. Originally, some Shires were small independent king- 
dtffns, which later became absorbed in larger kingdoms. Other 
Shires were established in the beginning as subdivisions of 
kingdoms. The present division of the United Kingdom into 

1 Cf. Ch. XVJ, infra. 

2 V., for these matters, Ch. XIII, p. 206, and Ch. XIV, p. 221, infra. 

8 Cf. Ch. XVI, Infra. 



IO INTRODUCTION 

Counties represents the historical culmination of the eanly 
division into Shires. The latter term is still frequently em- 
ployed in current usage. 

In Anglo-Saxon England, the Shires were divided into 
Hundreds. These were in some cases known as Wards and, 
in others, by the curious name of Wapentakes. The origin 
and nature of Hundreds remain somewhat obscure, and they 
are subjects of controversy on the part of historians. The 
smallest historical division was the Township (Tun). When 
the ecclesiastical Parishes were later established, they were in 
many instances the same as the Tuns. The Tuns and the 
Hundreds fell into decay during the Middle Ages; but the 
Parishes survived. The Parishes, at the beginning of modern 
times, began to take bn civil as well as ecclesiastical functions. 
At the present time, civil Parishes are the smallest territorial 
subdivisions for purposes of rural local government. Standing 
between the Counties and Parishes at the present day, in a 
position roughly analogous to the historic position of the 
Hundreds between the Shires and Tuns, are Urban and Rural 
Districts. "*In respect of local governmental arrangements, 
England and Wales are together to be differentiated to some 
extent from Scotland and from Ireland. 

From early times, large urban communities have tended to 
stand as exceptions in any symmetrical division and subdivision 
of England. Such communities are normally known as Bor- 
oughs. The term City, which is commonly employed in the 
United States, is in less frequent usage in England, being 
confined for the most part to municipalities that are seats of a 
Bishopric. 1 The growth of urban communities has, of course, 
been a striking development of modern England. At present, 
there are about forty municipalities with populations exceeding 
100,000. Approximately two-thirds of them are situated in 
the industrial North. 

1 V., for the special use of the term in connection with London, Ch. 
XVI, p. 258, ittfra. 



THE BASES OF ENGLISH GOVERNMENT II 



2. THE POPULATION 

The total population of the United Kingdom of Great 
Britain and Northern Ireland is estimated, as of the middle of 
J 935> at 46,886,ooo. 1 The increase in the last ten years has 
been about 4%. The birth rate is 15, the death rate 12. At 
present, females somewhat exceed males, the proportion being 
52% as against 48%. The population of England and Wales 
is 40,645 ,000, or slightly less than 87% of the whole population 
of the United Kingdom. The population of Scotland is a little 
more than 10%, and that of Northern Ireland a little less than 
3% of the whole. The number of alienj in the United King- 
dom is round one-half of one per cent of the population. 

The total population of the British Empire is estimated at 
nearly 500,000,000. This is somewhat more than one-fourth 
of the inhabitants of the earth. The extent of the Empire 
is so great that its population includes all kinds of peoples. So 
far as the United Kingdom is concerned, two races, Saxon and 
Celt, form primarily its demographic basis. The original 
inhabitants of the island, on the occasion of the successive 
invasions at the hands first of the Romans and then of the 
various Teutonic tribes, were Celts. These natives tended to 
be driven back from the southeastern part of the island. This 
section, which is now England, lent itself more easily to inva- 
sion than other parts of the island and had from nature 
endowments that rendered it more attractive to settlers. The 
people who finally emerged from the mixture of earlier tribes, 
like the Angles and Saxons, with Danes and with Normans 
are the English. The racial basis of the other and originally 
less accessible parts of the United Kingdom is largely Celtic. 
This is true of the Welsh, the Scottish, and the Irish. In mat- 
ters of government, the generalization may be risked that the 
English tend to furnish the solid and practical qualities which 
make for good administration and the successful adaptation of 
institutions to practical problems, and that persons of Celtic 

1 Statistics may be found in convenient form in Statistical Abstract of 
the United Kingdom, 79th No., Cmd. 5144 (1936). 



12 INTRODUCTION 

race, along with outstanding Jews, furnish qualities, like imag- 
ination and vision, which are so important for leadership. 

There is an Established Church in England and an Estab- 
lished Church in Scotland. There are now no established 
churches in Wales and in Ireland. In general, the people 
possess complete freedom of worship. The official connection 
between Church and State in England has few, if any, impor- 
tant practical consequences for the governmental system; and 
the official connection between Church and State in Scotland 
is even less close. 1 Statistics concerning religious affiliations 
are not readily available. The number of 'Roman Catholics 
in the United Kingdom appears to be about the same as the 
number of members <of the Established Church of England j 
but the existence of large numbers of nonconformists causes 
Roman Catholics greatly to be outnumbered by Protestants. 
The number of Jews in the United Kingdom is estimated to 
be in the neighbourhood of 300,000. 

From the point of view of government,, perhaps the most 
salient point about population is its density. In England and 
Wales, close to seven hundred persons to the square mile are 
on the average to be found. This means that in those areas 
the population is nearly five times as dense as in Scotland. In 
England and Wales, again, almost one-fifth of the total popula- 
tion is to be found in Greater London. Outside the metropolis, 
the population is, of course, denser in the North, where most 
of the larger urban communities are to be found, than in the 
South. In general, the important consideration is the large 
proportion of people living in urban conditions. The increase, 
after being exceedingly rapid in the nineteenth century, has, 
in recent decades, continued, though much more slowly. At 
the moment, out of every ten people in England and Wales, 
eight are urban dwellers, and only two live in the country. 

1 Cf. Ch. VIII, infra. A good brief account of the constitutional rela- 
tions of Church and State in Great Britain may be found in Wade and 
Phillips, Constitutional Law (Revised ed., London, 1933), Pt. X. 



CHAPTER III 
BRITISH NATIONALITY AND CITIZENSHIP 

A population that is found anywhere on British territory falls, 
roughly speaking, into two categories. The same thing is, in 
general, true in other countries of the world. The two cate- 
gories, of course, include, on the pne h^nd, persons who are 
aliens and, on the other, persons who are said to be of the 
nationality of the country involved. In Great Britain, aliens 
are, for many practical purposes, in a position that is not unlike 
the position of persons of British nationality. If aliens are 
present on British territory, they may move about freely and 
peaceably, indistinguishable in most respects from the British. 
Nevertheless, aliens are not in reality members of the British 
nation. They may, it is true, with comparative ease become 
British through naturalization ; but, as long as they are aliens, 
they are to be distinguished from the bulk of persons of British 
nationality. 

Nationality and nation, like so many of the concepts with 
which the student of government is concerned, are at the same 
time familiar concepts in common usage and concepts of a 
technical nature. This is to say that they share with most 
concepts encountered in political science the possession of both 
a non-legal and a legal aspect. The two aspects are, of course, 
reciprocally related. The non-legal in p^rt determine3 and in 
part is determined by the legal. Thus, for example, in respect 
of nationality, a wholly legal idea of the phenomenon is too 
rigid and narrow, a wholly non-legal concept of it too vague. 

The non-legal aspect of nationality may be said to be its 
common-sense, its general, its less definite and rigid, its moral, 
or its sentimental aspect. From this point of view, accurate 
definition of nationality would seem to be for practical purposes 



14 INTRODUCTION 

impossible. Many, it is true, have been attempted} but none 
seems altogether acceptable. 

Various things may be listed as closely connected with a 
nation and, consequently, with nationality. Some of them are, 
in loose thinking and speaking, assumed to be determining 
factors. However, no one of them is, strictly speaking, an 
essential distinguishing characteristic. Thus, such things as 
special environment, geographical unity, language, religion, and 
race may be successively passed in review in connection with 
what are recognized to be nations. It is abundantly clear that 
nations may exist in the absence of the characteristic proposed, 
and that, conversely, the suggested characteristic may always 
exist in the absence ofca nation. On the other hand, all of them 
may be, and frequently are, contributing factors. But this is 
merely to repeat that exact definition is impossible. 

Concerning the whole subject of nationality on its sentimental 
side, the notions of Renan are, perhaps, as helpful as any that 
can be found. In his view, the determining factors of nation- 
hood are*# rich heritage of memories and a desire and deter- 
mination to preserve those memories. Some difficulty, it is 
true, might be found in the attempt to frame a definition of 
a nation in terms of these elements, in such a way as not to 
define equally well the City of Oxford or Cambridge Uni- 
versity. Perhaps, the desire to become a state ought to be 
added. At all events, Renan has undoubtedly done well to 
point out that nationality is essentially psychological, that its 
roots are deep in the past, and that it is a rich and varied 
growth of exceeding complexity. 

The great variety of elements that constitute the British 
nation in its broadest aspect is a commonplace. All languages, 
religions, creeds, and races are found in a nation on which 
"the sun never sets." This is largely to point out that accurate 
determination of the unifying factor or factors, which is a 
difficult enough attempt in any circumstances, is, in respect of 
British nationality, a still more baffling problem. However, 
one advantage, at least, exists. A general statement of the unity 



BRITISH NATIONALITY AND CITIZENSHIP 15 

of British nationhood may be symbolized. The British nation 
owes and owns allegiance to the Crown. 1 

Just as, in general, many non-legal forces are at work behind 
law, influencing it and being in turn influenced by it, so in 
the case of nationality, its various aspects of a sentimental char- 
acter in part determine such stipulations of law as regulate 
nationality and are in part affected by those stipulations. The 
law, it is true, may, from the sentimental point of view, appear 
at times to be arbitrary, rigid, and anomalous; but the law 
possesses the virtues of its shortcomings. It is, at least, definite 
and certain. It introduces a desirable element of accuracy. 

From a legal point of view, nationality is acquired in two 
ways. The first is by birth. The second is through naturaliza- 
tion. In Great Britain, these matters are at present basically 
determined by a series of Acts of Parliament that were passed 
during the period 1914 to 1922. They are known as the 
British Nationality and Status of Aliens Acts. 

The acquisition of British nationality by birth is, legally 
speaking, recognized to be acquired in accordance with two 
principles. These principles, which are of considerable an- 
tiquity, were incorporated into the Acts of 1914-1922 from a 
basic Act of 1870. The principles are those of place of birth 
and of parentage. The principle that has regard for place of 
birth is known as the jus soli. It is of feudal origin and is a 
principle of the English Common Law. The principle of 
parentage is designated technically as the jus sangu'mis. It is a 
principle of Roman Law, which is said to be found likewise in 
early Germanic jurisprudence. In Great Britain and, conse- 
quently, in the United States the jus soli is the primary prin- 
ciple and the jus sanguinis supplementary to it. Incidentally, 
on the Continent of Europe, this relationship is, in general, 
the reverse. 

According to the principle of jus soli, existing Acts stipulate 
that British nationality is acquired, aside from a few relatively 
unimportant exceptions, by all persons born within the terri- 
tory of the Crown. In this respect, the territory of the Crown 

1 Cf. Ch. VIII, infra. 



l6 INTRODUCTION 

includes the Colonies, British India, and the self-governing 
parts of the British Commonwealth of Nations. It does not 
include Protectorates. In the second place, according to the 
principle of jus sanguinis, all persons born outside the territory 
of the Crown acquire at birth British ^nationality, if the father 
was, at the time, of British nationality. Most persons of 
British nationality, it must be manifest, acquire their nationality 
according to both the principle of place of birth and the prin- 
ciple of nationality of the father. Where British nationality 
is acquired according to one of the principles alone, the other 
is, in the circumstances, frequently operative, because applied 
by another country. Thus, if a child is born on British soil 
of parents who are not British, the child is British by virtue of 
jus soli; but, if the country to which the parents are subject 
applies the jus sanguinis, the child will acquire the nationality 
of that country as well. Again, a child of a British father may 
be born outside British territory in a country that applies the 
jus soli. In both cases, the child acquires a dual nationality. 
Such a situation, however, does not usually present great prac- 
tical difficulties. In the second case, for example, law requires 
that registration of birth be made at a British Consulate; and 
a person so registered must, upon becoming twenty-one years 
of age, make a declaration of intention to retain British 
nationality. 

Aliens may acquire British nationality through naturalization. 
In general, such aliens as desire to become naturalized may 
secure a certificate of British nationality, provided that they 
comply with several conditions established by law. They must 
have a sufficient knowledge of the English language - y they must 
be of good character ^ they must intend to reside in British 
territory, or, elsewhere, to serve the Crown j they must have 
resided for five out of the previous eight years in British 
territory 5 and they must have resided in the United Kingdom 
for the year immediately preceding the time of application. 
The various legal provisions regulating naturalization are ad- 
ministered on behalf of the executive branch of government by 
the Secretary of State for Home Affairs. This official possesses 
complete discretion in the award of the certificate of naturaliza- 



BRITISH NATIONALITY AND CITIZENSHIP 17 

/ ( ' 

tion. Once an alien has been allowed to take the oath of 
allegiance and receive a certificate of nationality, he may, in 
certain cases, have his certificate revoked; but, otherwise, he 
acquires all the rights and privileges and assumes all the obli- 
gations and duties of persons who are of British nationality by 
birth. 



PART II 

POPULAR PARTICIPATION IN 
ENGLISH GOVERNMENT 



CHAPTER IV 
VOTERS IN GREAT BRITAIN 

The people are commonly said to govern Great Britain. 
The basis of this dictum is the 'fact that almost all adult 
British citizens are voters. In other words, these citizens, 
through the possession of the franchise, have an initial voice 
in determining how the country shall be governed. 

There are two franchises in Great Britain, the national and 
local. 1 The national is somewhat more liberal than the local. 
The local franchise, as a matter of fact, is, roughly speaking, 
at least as liberal in practice as the franchise of most democratic 
countries. The fact that the national franchise is still more 
liberal is merely marked evidence of the wide extent of the 
national suffrage. 

The fact that the present national British franchise is ex- 
tended so widely is determined by the existence of provisions of 
law that regulate the qualifications for voting. These pro- 
visions are contained in a great Act of Parliament, as amended. 
The Act is known as the Representation of the People Act of 
1918. t It has been amended in several important respects^ 
especially by the Representation of the People (Equal Fran- 
chise) Act of 1^28. 

The Acts of Parliament of 1918 and 1928, which establish 
basic qualifications for voting that are as simple as can easily be 
imagined, may be regarded as the culmination, on the legal side 
of a steady development towards the establishment in England 
of political democracy. This development took place withir 
the course of a period of about one hundred years. The severa 
stages of the development were marked by a series of historic 
Acts of Parliament dealing with the suffrage. 

1 V., for local suffrage qualifications, Ch. XVI, pp. 262-263, infra. 



21 



22 POPULAR PARTICIPATION 

t 

Many definitions of democracy have been attempted $ but 
few, if any, of them give the impression of being either accurate 
^>r usfcful. At the same time, political democracy is, as a rule, 
recognized to be closely, and even inextricably, connected with 
political equality. Hence, since political equality tends to result 
from liberalization of the franchise, political democracy is, in 
a definite sense, to be judged by extent of the suffrage. Of 
course, few, if any, persons would seriously contend that mere 
extension of the suffrage is sufficient to bring about political 
equality and democracy. Nevertheless, liberalization of the 
franchise and growth of political equality and democracy have 
tended to proceed together j and such liberalization is the 
simplest manifestatipn of such growth. This is the reason that 
students of government find so much interest in and attach so 
much importance to the stages by which development of 
qualifications for voting in England has taken place. 

I. ENGLISH SUFFRAGE HISTORY 

The outstanding date in the evolution of the present elec- 
toral franchise in England is 1832. This is, of course, the 
year of the Great Reform Bill. It marks the beginning of 
modern English suffrage history. At the same time, an earlier 
history extends backwards from 1832. Indeed, a journey in 
that direction does not encounter a significant date for four 
hundred years. Such a date is finally met in 1430. Before 
that year, again, an additional, if somewhat vague, period must 
be noted. 

An investigation of the history of English suffrage encoun- 
ters a definite difficulty. It is one that for the most part grows 
out of unfamiliar terminology. Of the expressions that are 
met with in this connection and that must be employed, many 
involve technical concepts of land tenure and the like. 
Modern students, more especially those who are not English, 
are likely to be unacquainted with such terms and to find them 
strange. The conclusion is simple. Importance attaches not 
so much to learning technical details as to understanding the 
fundamental situation involved. 



VOTERS IN GREAT BRITAIN 23 

Study of the history of English ' suffrage must also recog- 
nize an important distinction. It is a distinction between rural 
tand urban suffrage, between the County and the Borough 
franchise. 

Concerning suffrage conditions that prevailed in the period 
before 1430, scholars are not in agreement. So far as the 
Counties are concerned, it is certain that such voting as oc- 
curred took place in a County assembly known as the County 
Court. It is with respect to the question of who was present 
at such assemblies that controversy has existed. One school 
of opinion appears to hold that the County Court was composed 
of a restricted number of persons, consisting of one special 
class of land-holders. A second school believes that the com- 
position of the County Court rested on a much wider basis. 
The whole matter may be regarded as highly uncertain. With 
respect to the Boroughs, definite conclusions are even more 
difficult. Moreover, in the case of suffrage in the Boroughs, 
the uncertainty with respect to conditions likewise applies in 
considerable measure to the period following 1430; for the 
year 1430 is a landmark in the history not of Borough but of 
County suffrage. 

The eighth year of the reign of Henry VI (1422-1461), 
namely 1430, was marked by the famous Act of Parliament 
that has been called "the first disfranchising Statute on record." 
Whatever the uncertainties of the previous period, an Act of 
1406 had recognized voting in the County Court on a relatively 
wide scale. The Act of 1430 was considerably less liberal. It 
established what is known as the "forty shilling freeholder 
franchise." This means that only such persons could vote as 
held on special tenure land of a certain value. The freehold 
tenure was equivalent to outright ownership. Anyone whose 
tenure was t a different kind did not qualify. The forty 
shilling value referred, according to a practice that continues 
to the present day, to the annual value of the land. In general, 
this represents an amount based on what is reckoned to be the 
fair rental value for a year. Forty shillings, of course, repre- 
sented in the fifteenth century a sum of money that would 
today be many times as great. Generally speaking, the Act of 



24 POPULAR PARTICIPATION 

1430, it may be said, restricted the suffrage to rich land-owners. 
Persons who owned land of a value less than forty shillings and 
persons who held land on other tenures, such as copyhold and 
leasehold, were all, of course, disfranchised. This remained 
the situation for four centuries. 

In the period of four hundred years between the Act of 1430 
and the Reform Bill of 1832, the County franchise was, ap- 
parently, less restricted than might appear. The practice seems 
to have grown up of dividing land-holdings in such a way as 
to serve the purpose of extending the suffrage. So far as the 
Boroughs were concerned, the qualifications for voting were 
exceedingly complicated and diverse. Each Borough tended 
to differ from the others. General principles are difficult, if 
not impossible, to formulate. Moreover, this chaotic condition 
with respect to the Borough suffrage was considerably aggra- 
vated by the situation that came to exist with respect to Borough 
representation. More especially, the Industrial Revolution was 
followed by the growth of large urban communities that were 
unrepresented as such; and this, together with the famous con- 
ditions that existed in connection with historical Boroughs, 1 
idded to a growing dissatisfaction. There is no wonder that 
the great Act of 1832 was concerned primarily with the 
Boroughs. 

The Reform Bill of 1832 by no means neglected the County 
franchise altogether. The qualifications for voting were al- 
tered in certain technical respects. The forty-shilling free-hold 
qualification was somewhat modified, and other qualifications, all 
relating to property holding, were added. In general, the 
County franchise, it may be said, was somewhat, though not 
fundamentally, broadened. In the Boroughs, the changes were 
more far-reaching. Aside from the extremely important stipu- 
lations calculated to remedy Borough representation in the 
direction of equalization, 2 the Act established the Borough 
franchise o'n a basis that represented a vast improvement. In 
the first place, the Borough franchise was made uniform. This 
meant that the chaotic complexity of four hundred years and 

1 V., for the "rotten" and "pocket" Boroughs, Ch. XI, pp. 157-158, infra. 



VOTERS IN GREAT BRITAIN 25 

more had been almost wholly swept away. So far as qualifica- 
tions for voting are concerned, the principal qualification es- 
ablished was that of "occupiers of 10 premises." Thus, own- 
ership of probity was not required 5 but, on the other hand, 
:hose urban dwellers could vote who occupied premises of an 
mnual value of 10. 

The Reform Bill of 1832 has been said to be the greatest 
single legislative enactment ever passed. However, a simple 
reading .of its provisions might well result in wonderment at, an 
appraisal in such superlative terms. Stipulations about free- 
holders and leaseholders and copyholders and occupiers do not 
naturally convey the impression of an epoch-making document. 
Nevertheless, the Act ought to be judged in terms of its funda- 
mental effect. "It may be said to have accomplished by the 
orderly processes of government l a result that had required 
across the Channel, the great French Revolution. "The Act 
transferred political power to those persons who make up what 
is variously designated the middle class, the trades class, or the 
bourgeoisie. "More specifically, it created about half a million 
voters, thereby approximately doubling the number of persons 
possessing the franchise. This was, for the times, an immense 
accomplishment. In more modern perspective, much, of course, 
remained to be done. ^ven after the Act of 1832, only about 
one person in twenty-five could vote. -Agricultural labourers, 
miners, and factory workers were still excluded from the suf- 
frage. The extension of the franchise to these classes was to 
be accomplished in subsequent Acts. 

The Representation of the People Act of 1 867 was, again, an 
Act concerned primarily with the Boroughs rather than with the 
Counties. So far as the County franchise was concerned, only 
relatively minor changes were made. Agricultural labourers 
and miners were still excluded. On the other hand, the 
Borough franchise was greatly extended. This was accom- 
plished by the establishment of what is known as "the f 10 
lodger franchise." The accomplishment was that of a Con- 
servative Government, 2 being called by Punch Disraeli's "leap 

1 There were, it is true, threats of violence. 

2 V. in this respect, Ch. V, p. 39, infra. 



26 POPULAR PARTICIPATION 

in the dark." The number of voters was again doubled. About 
a million new voters were created, mostly among the class of 
skilled industrial workers. 

The Representative of the People Act of 1884 altered only 
in detail the Borough franchise. The great accomplishment of 
the Act was to assimilate the County franchise to that of the 
Boroughs. In doing this, the Act extended the franchise to 
large numbers of rural workingmen. It doubled, once more, 
the total list of voters. 

Though the franchise in England was, during the period be- 
tween 1884 and 1918, still bound up with property, the suffrage 
was essentially democratic, in the sense that it approximated to 
universal manhood suffrage. Further liberalization of the male 
suffrage and extension of the franchise to women were the work 
of the Representation of the People Act of 1918 and of the 
Representation of the People (Equal Franchise) Act of 1928. 

The Representation of the People Act of 1918 was, of course, 
passed during the World War, in anticipation of elections to be 
held after the coming of peace. Since party lines were not 
drawn during the War, the Act was a non-partisan measure. 
As such, it represented a certain amount of compromise. The 
result was that the Act contained certain anomalies; but these 
must be regarded as exceptions. The Act, as amended, estab- 
lishes qualifications for voting that are, generally speaking, as 
liberal as can easily be imagined. 

2. EXISTING SUFFRAGE PROVISIONS IN ENGLAND 

The only national elections in England are elections of mem- 
bers of the House of Commons. Hence, national qualifications 
for voting are the same as qualifications for voting in elections 
of members of the House of Commons. On the other hand, 
several kinds of local elections exist. Qualifications for voting 
in such local elections are, as has been said, different from those 
for voting in national elections j and, as a result, the national 
franchise must be distinguished from the local franchise* 

The simple formal test of whethei- a given individual can 
vote in national elections in England is whether or not the name 



VOTERS IN GREAT BRITAIN 27 

of such Individual appears on the national register of electors. 
In general, no one whose name does not appear on the national 
register can vote in a parliamentary election; and all whose 
names do appear there may vote. The register is prepared 
annually. It is prepared by registration officials, who are gen- 
erally the Town Clerks of the Boroughs and the Clerks of the 
County Councils in the Counties. The principal obligation for 
the correctness of the register rests upon these officials. Nor- 
mally, a qualified voter need take no initiative in order to be 
placed on the register. However, anyone at all may claim a 
place on the register ; and anyone at all may object to any claim 
that is made. Decision lies with the registration officials; but 
appeals may be taken to the courts. The annual revision of the 
register is made during a period of three months preceding 
October 15, on which date the register goes into force. The 
Representation of the People Act of 1918 stipulated that the 
register should be revised twice each year. By amendment in 
1926, this provision gave way to the present requirement of 
annual preparation. 

The basic qualifications in England for securing a place on 
the national register of electors are those of ( i ) nationality, 
(2) age, and (3) residence. A voter must be a British citizen 
and must be twenty-one years of age. In general, any adult 
man or woman citizen is qualified to vote in a constituency, if 
such person has been a resident of that constituency, or even of 
an adjoining constituency, for three months before the begin- 
ning of the period during which the register is prepared or, in 
other words, for six months before the date at which the register 
goes into force. ' 

These basic qualifications may be seen to be extremely simple. 
No property qualification is required; and no distinction is made 
between men and women. From sixty to seventy per cent of 
the population, it is estimated, can now vote. The basic pro- 
visions of the Representation of the People Act of 1918 abol- 
ished, in the case of males, all connection between voting and 
property, substituting the simple principle of residence; and the 
Act thereby abolished all remaining minor differences between 
Boroughs and Counties in respect of the franchise. The Act of 



28 POPULAR PARTICIPATION 

1918, however, did not immediately extend the franchise so as 
to include women on the same basis with men. The World 
War had ensured that Briti^i women would secure the vote; 
but to enfranchise women at once on the same terms as men 
would have created an electorate in which a large body of in- 
experienced women voters would have outnumbered the whole 
body of male voters. As a consequence, the Act of 1918 estab- 
lished special suffrage qualifications for women. Not only was 
the age limit made thirty in the case of women; but women, 
in order to become national voters, had* to fulfill, either in their 
own right or through their husbands, certain property quali- 
fkations. All differences between men and women were 
abolished by the Representation of the People (Equal Fran- 
chise) Act of 1^2.8, popularly referred to as the "Flapper-Act." 

The Representative of the People Act of 1918, as amended, 
incorporates certain exceptions into its terms. More especially, 
a few exceptions exist that involve the anomaly of plural voting. 
This situation, in turn, may be regarded as a result of com- 
promisfe necessary in war conditions. 

The fact that a few persons, who, it must be remembered, 
constitute an extremely small part of the total electorate, can 
vote more than once is due to the incorporation into law of two 
qualifications, other than residence, by which adult citizens are 
entitled to secure places on the register of electors. One of these 
additional qualifications is a property qualification, the other an 
educational one. In the first case, an adult citizen who, for the 
same interval as in the case of residence, has occupied, or whose 
husband or wife has occupied, business premises of an annual 
value of 10 is placed on the register of electors. In the other 
case, adult citizens are placed on the register for the University 
constituencies, if they are graduates of one of the Universities 
involved. Whatever the situation, no person, however many 
times qualified, may vote more than twice in a given election or 
more than once in a given constituency. One of the votes must 
be cast by virtue of the residence qualification. 

Certain disqualifications are usually listed with respect to the 
franchise in England. Persons who are disqualified fall, in 
general, into two categories. In the first category are certain 



VOTERS IN GREAT BRITAIN 29 

persons, namely, infants and aliens, who do not possess the 
basic qualifications of age and nationality. In addition to these, 
a list of those disqualified contains certain kinds of persons who, 
though possessed of the basic qualifications, are specially in- 
capacitated by law. Such persons include peers, returning 
officers, lunatics and idiots, certain criminals, and persons con- 
victed of violation of certain^ provisions of law calculated to 
prevent elections from being corrupt or unfair. 



CHAPTER V 
POLITICAL PARTIES IN GREAT BRITAIN 

Experience and reason combine to suggest that, whenever 
large numbers of people are given a voice in the affairs of gov- 
ernment, the people will tend to fall into, or to form themselves 
into, political parties. In this respect, England is by no means 
exceptional. Indeed, much of the most important experience 
on which an intelligent understanding of political parties can 
be based consists of English experience. In this, as in so many 
other things, the relatively unbroken course of English political 
history and the relatively small part played in that history by 
conscious planning give the impression that a student who 
directs ^his careful attention to English experience is likely to 
be at grips with the working of natural forces. 

Since political parties and a democratic governmental system 
in England have grown up together, each presupposes the other. 
Indeed, two governmental systems may be said to exist side by 
side, neither being comprehensible except in relation to the 
other. One is the theoretical lawbook group of institutions, 
which could not of themselves work in practice. The second is 
a practical system of political parties, which impart vigour and 
motion "to what would otherwise be inert machinery. 

Political parties were defined by Edmund Burke in a famous 
definition that has suffered little, if any, from much quoting. 
"Party," runs his definition, "is a body of men united for pro- 
moting, by their joint endeavours, the national interest, upon 
some particular principle, in which they are agreed." Analysis 
of these words will show that they clearly suggest two important 
aspects of political parties. In the first place, they point defi- 
nitely to a theoretical side of parties, to the fact that princifle 
is involved. On the other hand, the definition clearly implies 
the existence in practice of organization. As a matter of fact, 

30 



POLITICAL PARTIES IN GREAT BRITAIN 31 

difference of principle furnishes the basis on which in greater or 
lesser degree opposing political organizations rest. 

Determination of the principle on which people become or- 
ganized into political parties is far from easy. In the first place, 
human motives are involved $ and human motives are difficult to 
understand. It is practically certain that the motives on which 
human beings act are often extremely complex; and any effort 
to apprehend such a complexus greatly risks the confusion that 
results from over-simplification. Moreover, human desires are 
involved. This causes articulate expression concerning motives 
to be very uncertain. What a person says about his own motives 
is frequently very different from what other people say about 
them, and vice versa. Again, frequent confusion between means 
and end adds to the difficulty. People often become so excited 
about a method they desire to employ that they tend to make it 
an end in itself and to forget the end which the method was 
originally intended to serve. Indeed, this is frequently true of 
the organization itself of political parties. Organization at 
times becomes so rigid that even the alleged principles on which 
parties originally rested are obscured. It is especially in these 
conditions that expressions of doubt are likely to be heard con- 
cerning whether there is any real difference between parties. 
These and other difficulties are encountered when experience, in 
the form of history, is examined, and when reason attempts 
to find in it any order or principle. 

Burke suggested a clufe to the principle that fundamentally 
distinguishes political parties, when he alluded to the "national 
interest." This expression has many equivalents. "Public 
good" and "general welfare" are only two of a large number. 
All of them are alike in that they attempt to express the end 
which government is conceived to serve. All political groups, 
presumably, would agree that government ought to promote 
the general welfare. What they appear most fundamentlly to 
disagree about is the terms in which the general welfare is pri- 
marily to be interpreted. This is what is involved in the basic 
issue between the interests of the few and the interests of the 
many, between the interests of the classes and the interests of 
the masses, between the interests of privileged persons and the 



32 POPULAR PARTICIPATION 

interests of the less fortunate body of the people. Anyone who 
will look with a little care may v observe this issue running like 
a thread through all modern history. 

The cleavage between people who interpret the general wel- 
fare in terms of the interest of the few and people who inter- 
pret it in terms of the interest of the many, though it is basically 
always the same, manifests itself in many ways. Partly as a 
result of this, considerable variation in terminology is to be 
found. For example, one expression of the whole matter is seen 
in the increasingly familiar distinction between the Right and 
the Left. These terms are, perhaps, the most satisfactory that 
can be employed in this connection. They possess the great 
advantage of suggesting a cleavage without suggesting what it 
is. In this respect, they are superior to the terms Conservatism 
and Liberalism, to which they., in general, correspond. 

The terms Right and Left, in their literal meaning, refer, 
of course, to a simple parliamentary practice on the Continent 
of Europe. There, as is well known, members of a legislative 
assembly sit in a semi-circular chamber, facing their presiding 
officer. Members who think of the general welfare in terms 
of the few sit to the right of the presiding officer. Members 
who think of the general welfare in terms of the many sit to 
his left. On the other hand, seating arrangements for mem- 
bers in the English Parliament are entirely different. The 
members, of course, sit facing one another. Normally, the 
members that support the Government of the day occupy one 
side of the House, those forming the Opposition the other. 
Though the terms Right and Left are not infrequently em- 
ployed in modern England, they are not indigenous. They 
are decidedly less familiar than the terms Conservatism and 
Liberalism. 

In England, the twin terms Conservative and Liberal, and 
derivatives of these terms, though they have definitely tended 
to become generic expressions for a fundamental cleavage in 
political points of view, are only one example of terms that 
have been historically employed, in respect of a persistent dichot- 
omy. In other words, political opinion and political parties, 
like so many other aspects of government in England, are the 



POLITICAL PARTIES IN GREAT BRITAIN 33 

resultant of a long natural development; and their nature is to 
be most properly ^understood only in terms of their history. 

The tendency for means and end to become confused in 
political controversy is well exemplified in Conservatism and 
Liberalism. Conservatives, in so far as they are connected with 
conserving something, are, or have been, persons who believe 
that conservation is an important means towards promoting the 
general welfare; and, in the same way, Liberals are, or have 
been, persons who believe that liberation is an important means 
towards promoting the general welfare.. However, since the 
fundamental difference between these two groups of persons is, 
in reality, determined by the terms in which they interpret the 
general welfare, Conservatism is identical \yth the Right and 
Liberalism with the Left4)nly on the condition that conservation 
appears to serve the interest of the few and liberation that of 
the many. This identity undoubtedly existed at the beginning 
of the modern era. Inasmuch as the privileged few, in general, 
possessed power at that time, their interest seemed to be to 
preserve things as they were; whereas the masses and their 
champions thought that the general interest, as they interpreted 
it, would best be served by change. However, the modern his- 
tory of England, as of other countries, shows that not infre- 
quently the opposing camps tend on occasion to change and even 
to exchange their respective means. The difference as to end 
remains; but circumstances cause methods to vary. This is at 
the basis of the confusion in thought between means and end 
that is so often encountered in recent times. It ought to sug- 
gest the need of constant care, when various practical subjects 
of disagreement are considered. 

The most fundamental practical question with respect to 
which a basic cleavage; of political opinion may manifest itself 
is the question of regime. Opposing political camps /not only 
may disagree about the system of government that ought to 
exist in a given state; they have so disagreed more than once 
in history. Thus, in England, the seventeenth century was 
marked by a ' struggle between the King and Parliament. 
Opinion tended to divide on support of one side or the other. 
The issue clearly was one that involved the regime. More- 



34 POPULAR PARTICIPATION 

over, the issue tended to Be the same as, or to coincide with, 
other issues expressed differently. The privileged few, who 
wished in general to conserve things as they were, supported 
the royalist cause. Those who interpreted the general welfare 
in broader terms and who favoured change and liberty, belonged' 
to the parliamentary party. At the same time, the question of 
regime, though an extremely important question, is, after all, 
only a question of means. People are not in reality interested 
'n a governmental system as such, but in the end it may be made 
to serve. Hence, in different conditions, the question may ap- 
pear in altered guise. Thus, in present-day England, the poli- 
tical system can scarcely be said to be an acute issue. All 
parties tend to agree on the regime. Hence, the matter is 
largely one of tradition. If traditional supporters of monarchy, 
the Right, remain the stronger supporters of the monarchical 
system, the Left for the most part at least accepts it. 

Two other imporant and fundamental matters that have his- 
torically been subjects of basic political disagreement are the 
Churchcand the Army. These two institutions symbolize the 
two great forces, the spiritual and the physical, upon which any 
political system must, in greater or less degree, rest. In general, 
the historical position of the Left has involved the contention 
that the Church and the Army have served as bulwarks for the 
interests of the privileged few. The Right has tended to accept 
this judgment, by regularly opposing change in connection with 
these institutions. This has, on the whole, remained the situa- 
tion, though here, as elsewhere, the passing of time serves to 
bring some modification. Thus, the religious issue is scarcely 
so politically important in England, with an Established 
Church, as in some other countries, like France for instance, 
where Church and State haVe been separated. And yet, Eng- 
lish tradition continues strong in this respect as in others; for 
religion is often an important clue to political differences. 
Typical members of the Church of England are, apparently, 
likely always to be found in the opposite camp from typical 
Nonconformists. So far as the Army is concerned, the historical 
situation has been analogous. However, positions in this re- 
spect might altogether conceivably be changed. v To assume no 



POLITICAL PARTIES IN GREAT BRITAIN 35 

alteration would be to confuse again means and end. If those 
who interpret the general welfare in terms of the interests of 
the masses should get a firm hold on political power, their 
attitude towards the Army would almost certainly, as numerous 
indications suggest, become considerably altered. 

The questions of regime, of Church and Army, may, together 
with countless lesser matters connected with them, be regarded 
as essentially 'political. They have, however important they 
remain, tended, in recent generations, to become secondary in 
comparison with economic an$ social questions. It would be 
practically impossible to exaggerate the paramount importance 
of this far-reaching change. Incidentally, confusion of thought 
about means and ends, shifts in position, anomalies of termin- 
ology, and similar phenomena are to be explained primarily in 
terms of this very change. At the same time^ the fundamental 
basis of cleavage remains the same. A relentless pressure of 
events causes the general welfare to be thought of and spoken 
of more than formerly in terms of social justice and economic 
equality; but the general welfare continues to be interpreted 
differently by those who interpret it in terms of the interests of 
the few and those who interpret it in terms of the interests of 
the many. 

I. PARTY HISTORY 

Any date that can be chosen as the date of the origin of 
political parties in England will leave the possibility of pointing 
to earlier events as containing something that could claim to be 
the germ of fundamental disagreement in political opinion. 
Hence, in this respect as in most others, a date serves merely 
as a convenient point at which to attempt the always difficult 
feat of picking up the thread of history in the middle of its 
course. Such a date in respect of English political parties is the 
year 1679. 

The convenience of the date 1679 consists in the fact that the 
terms Whig and Tory were then applied to English parties 
for the first time. Not only does the appearance of those 
familiar terms give a modern flavour to political partisanship j 



36 POPULAR PARTICIPATION 

in general, the parties themselves displayed characteristics that 
may be regarded as essentially modern. Before this time, of 
course, hostility of opposing political camps had manifested it- 
self on various occasions. To choose only two, separated by 
nearly two centuries from each other, the opposition of Lan- 
castrians and Yorkists and of Roundheads and Cavaliers is made 
familiar to all children through their history-books. Such oppo- 
sition, however, was characterized by a resort to armed force. 
Voting played at the most a very minor role. In terms of a 
familiar antithesis, breaking heads was more prevalent than 
counting them. This is not, of course, N to say that armed force 
has played no part in modern political development. It is 
rather to emphasise the usual connotation of modern political 
parties. In general, party politics operate in a normal manner 
only when peaceful conditions can be assumed. Opponents 
must agree at least on that. They must accept the existing 
regime at least to the. extent of approving change only when 
change is effected by a method recognized as legal. The effec- 
tive possibility must exist that a political will other than that 
existing at a given time may be made to prevail without resort 
to violence. Roughly speaking, Whigs and Tories came into 
existence in conditions of that kind. 

In 1679, during the reign, that is, of .Charles II (1666-1685), 
the Exclusion Bill was introduced into Parliament. This Bill 
had as its object the exclusion of the future James II, as a 
Roman Catholic, from the throne of England. Charles II met 
the threat to his bfother's succession by dissolving Parliament. 
New elections not having reduced the opposition to James on 
the part of members of the House of Commons, the King re- 
frained from summoning Parliament. Thereupon, persons 
opposed to royal authority and to the succession through James 
began to send to the King petitions urging the summoning of 
Parliament. . They became known as "petitioners." Supporters 
of the royalist cause found such petitions completely reprehen- 
sible. As a result, the name "abhorrers" was applied to them. 
Within a short time, each groupTpplied to the other the most 
scurrilous terms available. In this way, petitioners became. 
Whigs, a name applied in parts of Scotland to outlaws who. 



POLITICAL PARTIES IN GREAT BRITAIN 37 

were persecuted Covenanters $ and abhorrers became Tories, a 
term designating a group of Irish bandits nominally attached 
to the Roman Catholic Church and to the royalist cause. 

The names Whig and Tory became, as is well known, firmly 
established. With the passing of time, they tended to lose their 
scurrilous connotations. Until well into the nineteenth century, 
they served to designate two opposing political camps, the for- 
tunes of each of which successively ebbed and flowed. Thp 
name Whig gave way, about the middle of the century, to that 
of Liberal. The latter name has survived until the present 
day; whereas the former is commonly employed only in an 
historical context. Slightly earlier, Tories became known as 
Conservatives, a term that continues, perhaps, to be the most 
suitable in England as a designation of the Right. However, 
late in the nineteenth century, the term Conservative gave way 
.to that of Unionist ; and the latter, as will be seen presently, 
remains the technical name of the party. In current political 
discussion, the term Tory, with something of its original abusive 
character, is still frequently employed. 

In addition to the two historical parties, other political groups 
have at times appeared on the scene. By far the most important 
of these is the party of socialists, known regularly as the Labour 
Party. 

The detailed story of party politics in England is so long 
that it is a subject worthy of special study in its own right. 
However, as even an outline is sufficient to show, it is a story 
that is closely interconnected with the story of the struggle in 
England for political democracy, with the struggle, more lat- 
terly, for economic democracy, and with the development of a 
governmental system which has, in its growth, influenced and 
been influenced by those relationships. 

The opening skirmish between Whigs and Tories, that is, 
the controversy over the exclusion of James II from the throne, 
resulted in an initial victory for the Tories. James II (1685- 
1689), of course, came to the throne. However, the Tory 
triumph was short-lived 5 for the Whigs, in a successful Revolu- 
tion, drove James from the throne, placed upon it William and 



38 POPULAR PARTICIPATION 

Mary, and, thereby, firmly established the supremacy of Par- 
liament over the King. 1 

Though William III ( 1689-1702 ; with Mary to 1694) owed 
his position on the throne to the Whigs, he hoped not to be 
wholly dependent on that party. Consequently, he attempted 
to follow the practice of choosing his Ministers from both par- 
ties. However, he experienced the fact that political conditions 
<#n be stronger than royul desire $ and he became more and 
more dependent on the Whigs. Indeed, on one occasion, a situ- 
ation in which all the Ministers were Whigs coincided for a 
short time with a Whig majority in the House of Commons, 
a condition that is often cited as an important precedent for 
existing governmental practice, in which solidarity amongst the 
Ministers and between the Ministers and a parliamentary ma- 
jority is the normal situation. 2 

The experience of Queen Anne (1702-1714) was somewhat 
analogous to that of William III. She wished to draw her 
Ministers from both parties ; but she was driven by circum- 
stances to become dependent upon the Whigs. However, in 
the later years of her reign, a reaction in the country brought 
the Tories into the ascendancy and Tory Ministers into power. 
These Ministers, in turn, largely staked the life of their party 
on the question of who should succeed Queen Anne on the 
throne. They favoured the line of James II instead of the 
Hanoverian line, which had been chosen by Parliament in 1701. 

The success of the Whigs in securing to the Hanoverians 
the succession to the throne ensured the dominance of that 
party. The Whigs enjoyed a period of supremacy of nearly 
fifty years (1714-1760) that spanned the middle of the eigh- 
teenth century. It was a period in which political organization 
was, not without considerable corruption, perfected, a period 
in which a policy prevailed that contained such important ele- 
ments as moderation, peace, religious toleration, freedom of 
the press, and freedom of commerce, and a period in which 
things like the foreign origin of George I (1714-1727) and 
George II (1727-1760), the supremacy of Parliament, and the 

1 Cf. Ch. VII, p. 88, infra. 
2 Cf. Ch. IX, p. 13 1, infra. 



POLITICAL PARTIES IN GREAT BRITAIN 39 

personality of Sir Robert Walpole combined to establish the 
most characteristic feature of modern British government, the 
Cabinet System. 1 

Following the accession of George III (1760-1820) and ex- 
tending to the end of the reign of his successor, George IV 
(1820-1830), a long*period of Tory supremacy ensued. It was 
the period of the two William Pitts and Edmund Burke, of the 
American Revolution, and, of course, of the French Revolution 
with its wars and those of Napoleon and their aftermath. 

The Whigs returned to power in 1830. From that time 
until 1874, with a few brief intervals, they and their successors, 
the Liberals, remained in the ascendancy. The period was 
marked by many momentous events. Thf Great Reform Act 
was passed in 1832. There immediately followed a series of 
far-reaching reforms in respect of things like local government, 
social and industrial conditions, education, and colonial slavery. 
Towards the end of the period, a second series of great reforms, 
under the leadership of Gladstone, followed a second Parlia- 
mentary Reform, which itself was somewhat anomalous in that 
it was accomplished in 1867 during a short tenure of power by 
Disraeli and the Conservatives. In 1835, the Tories had come 
regularly to be known as Conservatives. For some years, party 
politics were marked by swift changes. Party leaders moved 
from one camp to another. Parties broke up into groups, and 
new integrations took place. In 1845, f r example, a group of 
free-trade supporters of Sir Robert Peel joined with the Whigs 
to form the Liberal Party. Their apparently secure hold on 
power demonstrated the necessity for the Conservative Party 
to reform itself. This it did under the leadership of Disraeli ; 
and the party scored a smashing victory at the polls in 1874. 

The period from 1874 to the World War was marked by the 
rivalry and alternate successes of the Liberals and Conservatives, 
led by Gladstone and Disraeli respectively and by their succes- 
sors. Amongst the momentous matters concerning which party 
lines were draWn was the question of the status of Ireland. 
Gladstone espoused the cause of Home Rule for Ireland, a 
course that resulted in the separation from his party of a group 

1 V., ibid. 



4Q, POPULAR PARTICIPATION 

known as Liberal Unionists. These secessionists subsequently 
joined the Conservative Party, which adopted the label Unionist 
as a new name, The last twenty years before the World War 
were shared by the two parties in two equal periods of ascend- 
ancy, first the Unionists and then the Liberals holding power 
for ten years each. 

In the period of party development in England previous to 
the War, a matter of the utmost importance was the beginning 
of the political Labour movement. On the intellectual side, 
the ground was prepared by the Fabian Society, an organization 
founded in 1883. Membership of the Society included such 
well-known names as those of Wells, Shaw, and the Webbs. 
The organization, as c its name suggests, supported a gradual in- 
troduction of socialism into the country. Its point of view was, 
thus,^ essentially different from that of the Social Democratic 
Federation, a Marxist organization whose more revolutionary 
views were, before the founding of the Fabian Society, the chief 
doctrinal influence on English socialism. An Independent 
Labour P^rty, which was socialist in its principles, was formed 
in 1893; but its first success at the polls did not occur until 
1900. In the latter year, representatives of the Independent 
Labour Party and, more especially, of Trades Unions and other 
organizations formed the Labour Representative Committee. 
Its object was to secure representation of Labour interests in 
Parliament. As it succeeded, during the next few years, in in- 
creasing its strength with unbelievable swiftness, 1 it asserted 
itself to be the Labour Party. Before the War, it normally 
supported the Liberals - y but, in the post- War period, it has 
grown so strong that the Liberals have tended to be almost 
ground to pieces between it and the Unionists. Though a three- 
party system has actually existed, evidence is not lacking that 
the two-party arrangement will more and more tend to be re- 
established. But whether three parties fer two parties become 
the prevailing situation, the Labour Party appears ^ certain to 
remain for a long time a major party. 

Since the War, the Labour Party has been twice in office, 

1 In the 1906 elections to the House of Commons, twenty-nine seats 
were won by candidates sponsored by the Committee. 



POLITICAL PARTIES IN GREAT BRITAIN 41 

though not in power. Some of its leaders also began in 1931 
a nominal participation in a party coalition. The only party 
that has been able at any time during the period since the War 
to command a majority in Parliament and, therefore, the party 
upon which principally devolves responsibility for what has hap- 
pened in recent years is the Conservative Party. However, an 
account of what has happened in the period involves an essay 
in current events rather than a study of the structure and func- 
tion of English government. 



_. PARTY PROGRAMMES 

In the perspective of present conditions, specific differences 
between the Conservative, the Liberal, and the Labour Parties 
are not easy to apprehend with accuracy or to state with confi- 
dence. It is a bold prophet who would predict the future of 
English Political Parties. Once the analysis of histpry and of 
basic general principles is deserted difficulties and uncertainties 
are manifold. 

One of the greatest obstacles to a clear view of practical diver- 
gencies between political parties is the highly relative nature 
of such divergencies. In England, as elsewhere, this manifests 
itself in respect both of programmes and of personnel. 

Political tenets are usually set out by parties in general terms. 
As a result, parties that might be presumed to differ funda- 
mentally from one another not infrequently describe their posi- 
tions in largely identical terms. In such cases, differences must 
be assumed tc L " J inferences of degree 5 and they must be de- 
duced from divergent traditional attitudes and sentiment. At 
other times, programmes contain similar terms, but terms that 
explicitly state differences of degree. One party is in favour of 
a certain thing, but so is another, except that it approves more 
of it or less of it. Even where political programmes appear 
to take diametrically opposite positions in respect of .a certain 
matter, the difference in practice is likely to be less great than 
terminology would indicate. One is forced back to contempla- 
tion of confusion between means and end, with resultant con- 
fusion of expression and anomaly of position. 



42 POPULAR PARTICIPATION 

In respect of personnel, the English Parties are not greatly 
different from the parties of other countries, so far as tenden- 
cies towards subdivision are concerned. Not only is any Party 
likely to have a Right and Left wing 5 it possibly has a Centre 
as well. This tends to exaggerate the relative character of Party 
differences and to render clear-cut distinctions more difficult. 
Not only does a liberal, in general, appear conservative to a 
radical and radical to a conservative, and so on 5 but shades of 
difference within *a Party are frequently so great that a left- 
wing conservative and a right-wing liberal may present more 
points of similarity to each other than each does to the mem- 
bers of the other wing of his own party, and so on. 

Prevailing attitude towards the regime, towards the Church, 
and towards the Army remains perhaps the most convenient 
standard by which to judge political differences between the 
present-day ConF^wrvative, Liberal, and Labour Parties in Eng- 
land. Yet, economic and social questions, as has been suggested, 
serve, much more than formerly and much more than political 
questions, to illuminate the deeper divisions between the Par- 
ties. And, in the one case as in the other, the most far-reaching 
consideration is the kind of terms in which the general welfare 
is interpreted. 

So far as the several aspects of the system of government in 
England are concerned, probably the most definite potential 
issue is the House of Lords. 1 The Labour Party at least theo- 
retically favours its abolition. If a move towards reform 
should develop, initiative would be likely to proceed from the 
Conservative Party ; for it would be glad to see the power of the 
Lords strengthened. The Liberal Party would doubtless op- 
pose firmly any increase in power for the House of Lords 5 but 
it would probably prefer careful regulation of the Upper 
House rather than its abolition. The Liberal Party seems to 
feel more interest in electoral reform than in any other political 
i$$ue. 2 , Since, by means of a change in the electoral system, 
the Party would apparently increase considerably its represen- 
tation in Parliament, Liberal interest in electoral reform is 

1 Cf. Ch. XIII, p. 212, infra. 
2 Cf. Ch. XI, p. 158, infra. 



POLITICAL PARTIES IN GREAT BRITAIN 43 

easily understandable. The Conservative Party appears satis- 
fied with the prevailing system of elections, and the Labour 
Party more interested in other things. The probable future 
attitude of the Parties towards Kingship is not easy to predict. 1 
The Conservative Party, the lineal descendant of the party 
that supported the King in the struggle between King and Par- 
liament, will certainly continue the most natural group of cham- 
pions of Kingship j but the situation which developed at the 
time of the abdication of Edward VIII indicates that, in the 
case of a King with apparent Left sympathies, the Conservative 
Party will insist on a wholly powerless Monarch as strongly 
as the parliamentary party ever urged limitation of royal power. 
The Liberal Party will probably continu^ to maintain a senti- 
mental support of monarchy for some time to come 5 but it 
seems by no means impossible that the germ of republicanism 
cultivated by the Independent Labour Party^may at no distant 
date spread throughout the Labour Party. 

The issue that cuts deepest in England is that of capitalism 
versus socialism. The Conservative Party, needless to say, is 
in general strongly opposed to socialism, the Labour Party op- 
posed to capitalism. The Liberal Party, after a long tradition 
for individualism, has recently deserted officially its theoretical 
laissez-faire attitude in favour of a position that is sometimes 
denominated "capitalist collectivism." These several economic 
positions furnish one of the best keys* to the attitude of the 
Parties towards a large multitude of questions foreign, imperial, 
and domestic. At the same time, the differences between the 
Parties in respect of not a few questions do not appear very 
great. Moreover, the relative character of differences that has 
been mentioned appears here as elsewhere. Insistence by the 
Independent Labour Party and members of the Left wing of 
the Labour Party on the importance of a more aggressive atti- 
tude, looking in the direction of "socialism in our time," is 
undoubtedly having a spreading influence j but the majority of 
the Labour Party continue at present to think of socialism in 
terms of "the inevitability of gradualness." On the other hand, 
though the Conservative Party is distrustful of ideologies and 

1 Cf. Ch. -VIII, p. 1 06, infra. 



44 POPULAR PARTICIPATION 

instinctively opposed to innovations based on theory, some of its 
younger members, together with many Liberals, give some in- 
dication that they do not strongly object to a considerable degree 
of socialism, especially where the name is not used, if only they 
are allowed to muddle into it. 

The basic economic positions of the Parties influence their 
views and programmes in various ways. The Conservative 
Party, though in domestic policy it % is not hostile to gradual 
reform in such matters as social insurance, slum clearance, and 
generally better housing conditions, is willing to approve only 
limited expenditures in these respects. The Party asserts its 
advocacy of reduced taxation; and financial stability is one of its 
basic tenets. The Conservatives are willing to aid agriculture, 
desire to protect industry, and favour better marketing facilities. 
The Liberal Party has, in recent times, been strongly stressing 
large expenditures for extensive coordinated public works. The 
Party likewise officially advocates the public ownership of land. 
The Labour Party advocates thorough public control of the 
Bank of Epgland and nationalization of the land, of coal min- 
ing, of transportation, and of other key industries. It does not, 
of course, oppose such reforms as Conservatives and Liberals 
are willing t0 accept; but it would go considerably further. The 
Party would like to see the Trades Unions largely unrestricted 
by law and the Cooperatives untaxed. Together with the Lib- 
erals, Labour advocates & higher school-leaving age. 

In respect of foreign policy, all three English Parties appear 
partisans of the League of Nations. However, in recent years, 
the Conservative Party's feeling towards the League is undoubt- 
edly more luke-warm than that of Labour 7 or Liberals. Again, 
the three Parties are agreed, though for somewhat different 
reasons, in favouring a strongly armed nation; but they differ in 
their attitudes towards the manufacture of and trade in arms. 
The Labour Party would abolish private enterprise in this re- 
spect; the Conservatives are opposed to such abolition; the 
Liberal Party favours rigid control. In general, the Liberals 
continue to be advocates of free trade. The Labour Party has 
for the most part been in this Liberal tradition, though they 
feel no objection to a certain amount of international regulation 



POLITICAL PARTIES IN GREAT BRITAIN 45 

of trade. The Conservative Party has strong protectionist 
sympathies, and it favours a considerable degree of economic 
self-sufficiency. 

The Conservative Party has much stronger feelings than the 
others concerning imperial relations. It advocates, in (particular, 
cooperation through a policy of imperial preference on the part 
of the members of the Empire. The Liberal Party is less in- 
terested, and tfye Labour Party still less, in imperial affairs. 
Labour, on principle i proclaims its belief in self-government for 
India and, in general, its advocacy of more just treatment of 
backward peoples. 

The leadership of the Conservative Party has traditionally 
come from the upper social classes. The principal members of 
the Party are recruited from the aristocracy, from the clergy, 
and, in modern times, from big business. The strength of the 
Party has historically been centred in the predominantly agri- 
cultural areas of the South and East of England. In urban 
communities, it is largely concentrated in the more exclusive 
residential sections. In the Liberal Party, typical leadership has 
proceeded from the professional classes. The Party, in the 
days of its prosperity, was strong in the West and North of 
England and in most of Wales and Scotland ; but, since its 
recent decline in strength, it retains in these regions only a 
limited number of surviving strongholds. The backbone of the 
strength of the Labour Party consists of the Trades Unions. 
Typical Party leaders have been Union officials. The recruit- 
ing of members, of the Party from all classes has been one of 
the striking political developments in modern England. The 
mass of the membership is, of course, to be found in mining 
and industrial areas. \/ 

3. PARTY ORGANIZATION 

The close connection between political parties, which are for 
the most part extra-legal agencies, and the regular legal 
agencies of government is indicated by the organization of 
political parties. This organization has as its definite aim the 
playing of an effective part in influencing and controlling cer- 



46 POPULAR PARTICIPATION 

tain aspects of governmental structure and governmental ac- 
tivity. In England, the two historic parties possess organizations 
that are in considerable degree similar to each other. The 
Labour Party displays in this respect certain differences. 

The principal basic unit in the organization of English politi- 
cal parties is the local association. In general, a local associa- 
tion exists in each community that is represented in Parliament, 
though urban communities are in this respect apparently some- 
what better organized than rural districts^ So far as structure 
is concerned, the central organizations for the most part con- 
fine themselves to recommendations with respect to local 
organization. The result is that considerable variation exists. 
The Labour Party, Jiowever, seems to secure rather more uni- 
formity than the two older parties. Local associations in some 
cases contain both men and women, whereas, in others, there 
are separate organizations. The composition of the associations 
is based on the representative principle. Rural Parishes, 
Wards, and the like, with their meetings, councils, and commit- 
tees, serve as basic units. In the older parties, membership in 
local associations is in theory based on election; but choice by a 
member of Parliament or else some form of self-choice appears 
likely to prevail in practice. So far as the Labour Party is con- 
cerned, the local organization is a local Labour Party. Indi- 
viduals belong to such a party either in their capacity as voters 
or in their capacity as members of affiliated trades unions, social- 
ist societies, or cooperative societies. In general, local Labour 
parties appear to be growing in number j but constituencies exist 
in which no local party has yet been established. 

The primary interest of local associations has been the list of 
voters. Indeed, local associations originally came into existence 
after the Great Reform Act of 1832, and increased after the 
Act of 1867, in order to render aid in preparing the lists of 
voters and in conducting elections. In this development, the 
event that most influenced the present organization of parties 
was the formulation in the late i86o's of the Liberal Associa- 
tion of Birmingham, under the guidance of Mr. Joseph Cham- 
berlain. The work of organization is said to have been in- 
fluenced by American practice. At all events, a highly inte- 



POLITICAL PARTIES IN GREAT BRITAIN 47 

grated political machine was built up in Birmingham on the 
representative principle, with Ward Caucuses serving as basic 
units. The discipline enforced was so strict that extraordinarily 
successful results were almost immediately realized at the polls. 
The Birmingham plan served as the model for other Liberal 
Associations j and it was, likewise, soon employed by the Con- 
servatives as well. In recent years, further extension of the 
suffrage, especially to women, has greatly influenced party 
organization ; but registration is not now a thing with which the 
parties need concern themselves. 

Supplementary to the attention that local organizations give 
to the voting lists are other functions that they perform. They 
hold meetings from time to time, issue wytten material of one 
sort or another, and, in general, undertake the various forms 
)f propaganda that have come to be associated everywhere with 
Darty activity. The local organizations for a long time played 
i principal part in the choice of Parliamentary candidates; but, 
in recent times, the central organizations appear to be exer- 
cising increasingly great influence in this respect. In connection 
with local elections, which have traditionally been relatively 
free from party activities, local party organizations have been 
recently concerning themselves with the choice of candidates. 
In respect of this development, the Labour Party, coming upon 
the field with fresh vitality and strong discipline, has been 
especially influential. 

All of the British parties possess a national, as well as a 
local, organization. Each maintains a permanent Central Office, 
which is the most important. part of its organization 5 and each 
holds a large annual meeting of a national federation. 

The earliest central political organization to be set up in Eng- 
land was apparently the Liberal Registration Association, estab- 
lished in 1 86 1. Somewhat later, the Liberal Party, influenced 
by its experience in Birmingham, formed in 1877 a National 
Federation of Liberal Associations, currently known as the Na- 
tional Liberal Federation. The Federation meets in an annual 
Council, composed primarily of representatives elected by the 
local associations, to whom are added ex officio a certain number 
of party officials and others. The Council chooses certain offi- 



48 POPULAR PARTICIPATION 

cers and committees, listens to speeches, and passes resolutions. 
It appears to play only a minor part in formulation of the party 
programme, this function being performed by the parliamentary 
party, which is composed of all the members of the party in 
Parliament. The party headquarters, the Central Office, main- 
tains a permanent organization, with a regular paid staff. It 
is in contact with the local organizations on the one hand and 
the parliamentary party on the other. It undertakes research 
and engages in various kinds of propaganda. One of its most 
practical activities is, of course, raising party funds. 

The Conservative Party established in 1867 the National 
Union of Conservative and Constitutional Associations. This 
Union continues to ^xist until the present day, though its com- 
position has naturally been somewhat modified with the passing 
of time. Its shorter title is Conservative National Union. The* 
annual meeting, which is known as a Conference, is in a general 
way analogous to the Liberal Council. The Unionist Central 
Office is likewise generally similar to that of the Liberal Party. 

The annual national meeting of the Labour Party is known 
as a Conference. It is, like the meetings of the older parties, 
representative in its composition; but the greater part of the 
delegates represent affiliated organizations of trades unions, 
socialist and cooperative societies, and the like. There are like- 
wise ex officio delegates. The Conference chooses certain com- 
mittees and officers. More especially, it chooses the Secretary 
of the Party, who together with the Treasurer, heads the Cen- 
tral Office. The Conference has more part than the corres- 
ponding organizations of the older parties in formulating the 
party programme. However, the parliamentary party exercises 
in this respect an influence somewhat analogous to that exercised 
by the parliamentary parties pf the older parties. Labour, it 
should be noted, is ^organized on the industrial side into the 
Trades Unions Congress, , which has many relations with the 
political organization, the Labour Party. The Congress holds 
its own annual meeting. 

The British citizen, in his capacity as a participant in the 
political life of the country, is not influenced merely by the 
party to which he may belong, in which he may become inter- 



POLITICAL PARTIES IN GREAT BRITAIN 49 

ested, or for whose candidate he may vote. A variety ~of mul- 
tifarious agencies of a political flavour exercise influence of one 
sort or another. Political leagues, clubs, and societies abound. 
There are separate organizations for women and for the young. 
Schools and colleges exist that serve to educate political workers. 
Debates, excursions, card parties, teas, concerts, and the like are 
constantly taking place. And, finally, newspaper readers, and 
even persons who do not read them, are being influenced to an 
incalculable degree by -the Press. How much such influence 
will be affected by broadcasting only the future will fully tell. 
In Great Britain, the quality of the most representative dailies 
'and periodicals is in general at a very high level. The Press 
is beyond any doubt incorruptible. Wealfji, of course, possesses 
here, as elsewhere, an advantage inherent in the nature of 
things; but, from a political point of view, the influence exerted 
is legitimate in the sense that a doctrinal or party bias is frankly 
assymed. 



PART III 
THE ENGLISH CONSTITUTION 



CHAPTER VI 
THE NATURE OF THE ENGLISH CONSTITUTION 

I INTRODUCTORY 

The nineteenth-century French writer, Alexis de Tocque- 
ville, asserted, in an often quoted epigramme, that the English 
Constitution does not exist. This affirmation is calculated to 
result in no little consternation for a person desirous of studying 
the English system of government. Such a student, in his 
earliest bibliographical efforts, will find numerous works, some 
of them running to a large number of volumes, that contain 
somewhere in their titles the very locution English Constitution. 
The question not unnaturally suggests itself whether all the 
writings listed actually deal with something that has no exist- 
ence. v 

Without too curious an examination of de Tocqueville's prob- 
able meaning, the assumption may be safely ventured that he 
had in mind a different concept of the English Constitution 
from that entertained by authors who write books about it. 
These writers must certainly believe that the English Consti- 
tution exists. 

Where people have different concepts of the same thing and, 
more especially, where the concepts in question raise the problem 
of existence, experience and reason combine to suggest that 
much importance attaches to a careful examination of the ele- 
mentary principles and the fundamental considerations involved. 

An examination of some part of the age-old attempts to deal 
with the problem of existence will suggest that such attempts 
are inevitably and inextricably interconnected with the gram- 
matical concept of time, or tense. A fundamental enquiry about 
anything tends to view the thing in terms of one, two, or all 
three of the simple tenses, present, past, and future. In terms 

53 



54 THE ENGLISH CONSTITUTION 

of th^ present, the enquiry becomes that of what a thing is. 
This is sometimes called the question of its nature. It is the 
primary and central aspect of most sdrious enquiry. At the 
same time, the answers commonly made to this question tend 
to appear unsatisfactory to serious enquirers $ and this fact fre- 
quently causes a shift of point of view in terms of tense. A 
shift to the past, which frequently takes place with a view to 
getting knowledge of the nature of a thing, raises the question 
of what it has been. This is sometimes called the question of 
its ongip. For students of Political Science, it involves, in large 
measure, studies in History. If, on the other hand, as fre- 
quently happens in connection with one or both of the other 
questions, the shift is to the future, the question becomes that 
of what a thing will be. The question is manifestly connected 
closely with that of what a thing ought to be. This is some- 
times called the question of end or of junction. 

In practice, whenever the question is raised of what anything 
actually is, as distinguished from what it has been or may be- 
come, the answer will depend in large measure on the way in 
which the thing is viewed. In other words, conclusions as to 
the fundamental nature of a constitution, like anything else, 
vary with the point of view from which it is considered. The 
conclusions vary, that is to say, with the emphasis employed. 
Experience shows that such points of view or such emphases 
are fundamentally two in number. One of them tends to view 
a thing as a whole, or, in viewing a thing, tends to emphasize 
its general characteristics or its unity. It tends to consider that 
the nature of a thing is determined by its form. The second 
point of view is that which tends to regard the nature of a thing 
as dependent on its composition. It is inclined to hold that 
what a thing is made of determines what it is. The emphasis 
is on substance. This distinction between form and substance 
is no less important for being familiar. At the same time, its 
familiarity, as much experience demonstrates, does not mean 
that the distinction is always borne clearly in mind. Indeed, 
failure to maintain it is frequently the source of much con- 
fusion in thinking. 

If a careful. attempt is to be made to arrive at a complete 



THE NATURE OF THE ENGLISH CONSTITUTION 55 

notion of what something is, an effort must be made to assume 
the points of view pf both substance and form, at the same time 
and in their interconnections. Indeed, to view things with an 
emphasis on substance, on form, or on both is not only the in- 
evitable but the desirable consequence of any attempt to under- 
stand what the real nature of those things is. History, it may 
be repeated,, may, of course, throw much light on what a thing 
is. In fact, a much repeated platitude tells us that we cannot 
understand things as they are without understanding them as 
they have been. At the same time, the two questions are mani- 
festly not identical. Experience shows that people often answer, 
as if by a natural instinct, the question of what a thing is in 
terms of what it has been and where it cam^ from. However, 
whenever this happens, the problem has been changed, often 
unconsciously and confusingly changed j and the point of view 
has been changed in the same way. So also, to the question of 
what a thing is, answer is frequently made in terms of what 
it may become or what it ought to become or what purpose it 
ought to serve. This is often a most important way of dealing 
with things. It is often a most fascinating way of treating them. 
It is often, perhaps, the most satisfactory way of defining things. 
At the same time, it is not, strictly speaking, to be concerned 
with their nature. In reality, the question of the nature of a 
thing is a question of form and substance. 

In respect of the English Constitution, then, primary im- 
portance attaches to an enquiry as to its nature. Moreover, the 
history of the English Constitution is generally recognized to 
be an extremely important subject. Its study can be highly valu- 
able in aiding an understanding of the nature of the Constitu- 
tion as well as in throwing much light on various other studies. 
Again, what the English Constitution may some day become or 
what it ought to become, what ends it serves and what purposes 
it ought to serve, are likewise matters of the highest moment. 
At the same time, all of these, though they are very closely con- 
nected with the question of the nature of the English Consti- 
tution as it is, are, it should be emphasized, in the strict sense 
different from it 



$6 THE ENGLISH CONSTITUTION 



2. THE LAW AND CONVENTIONS OF TH$ CONSTITUTION 

A serious effort to determine the nature of the English Con- 
stitution must, then, assume from the beginning the primordial 
distinction between form and substance. What the Constitution 
is, it may be repeated, can properly be understood pnly in these 
terms. More especially, no really valuable comparison can be 
made, except in these terms, between the concept of the English 
Constitution and the concept of a constitution like the American 
Constitution, which, incidentally, is certainly the kind of concept 
entertained by de Tocqueville. 

The American ftudent who assumes, as he must in some 
sense assume, that there is an English Constitution and who 
compares it, as he will perhaps inevitably do, with the Con- 
stitution t)f the United States will doubtless be struck in the 
beginning more by differences than by resemblances. In the 
first place, this will be due to the fact that he is confronted 
with what is in considerable degree unfamiliar. Moreover, 
what is called the English Constitution and what is called the 
American Constitution are in actual fact different to a great 
extent one from the other. This is, in turn, closely connected 
with the fact that the notion of v/hat a constitution is differs in 
marked degree in the two countries. Therefore, the American 
student who asks what the English Constitution is receives an 
answer based on the assumption that a constitution is by nature 
something different from what he is accustomed to consider it. 
However, he may, though some difficulties connected with what 
is unfamiliar are involved, fairly easily succeed in understanding 
this different concept of a constitution. He may learn to em- 
ploy it for the purpose both of learning what the English Con- 
stitution is and of comparing it with the Constitution of the 
United States. 

An initial difficulty that faces an American student who un- 
dertakes to examine the nature of the English Constitution 
grows out of the fact that he himself frequently employs the 
epithet constitutional in two very different ways. He will prob- 
ably be able to understand and to surmount the difficulty when 



THE NATURE OF THE ENGLISH CONSTITUTION 57 

he realizes that he makes this double usage. As a matter of 
fact, both of the meanings are consistent with an ordinary dic- 
tionary definition of constitutional as "pertaining to a constitu- 
tion." However, the real question is, of course, what the con- 
nection is between that which is denominated constitutional and 
the constitution to which it pertains. In reality, an American 
naturally employs the epithet constitutional sometimes to 
designate something that is an integral part of a constitution 
and sometimes to designate something that is not a part of the 
constitution in question but that is consistent with it. Thus, 
for example, the simple expression "a constitutional provision" 
is, in the absence of a context, highly ambiguous. It might 
mean a provision contained in and forming<,a part of a given 
constitution j or, on the other hand, it might well refer to some 
provision, not contained in any constitution at all, which is, or 
which is declared by the Supreme Court to be, in accordance 
with or consistent with or not contrary to or not in violation 
of a given constitution. For sqveral reasons, the second mean- 
ing is more naturally and probably more frequently employed 
in the United States than the first. At the same time, this 
meaning natural to an American student must be temporarily 
eliminated from an investigation of the nature of the English 
Constitution. The first meaning is the real subject of study. 
The problem, thus, becomes that of determining what is meant 
when something is said to be of a constitutional character, in 
the sense of forming a part of a given constitution. 

In the United States, the test of whether a given provision 
is constitutional in nature, in the sense of being of a constituent 
character or of being ;ui integral element of a constitution, is 
almost wholly a formal one. The simple test is whether or not 
the provision, no matter with what it deals, is contained in a 
single document agreed on all hands to be called the Constitu- 
tion. In the case of the Constitution of the United States, when 
the term Constitution is employed, the identity of the document 
to which reference is made is well understood. Many copies of 
the text of the document are available to everyone. Therefore, 
anyone can apply the simple formal test of looking into the 
document known as the Constitution, in order to determine 



58 THE ENGLISH CONSTITUTION 

whether a given provision is or is not present there and, there- 
fore, whether it is or is not of a constituent character. 

The existence in America of a document known as the Con- 
stitution of the United States, not to mention the existence of 
forty-eight analogous State Constitutions, explains in a simple 
way why the American view of the nature of a constitution is 
a formal one. Time has made such an emphasis natural and 
habitual. By the same token, the question of substance tends, 
with the passing of time, to be relatively less emphasized. The 
further the Philadelphia Convention recedes into the past, the 
less likely is a person who comes to regard certain material as 
being constituent in character because it is in the Constitution 
of the United Stctes to remember that the Framers of the 
Constitution had necessarily to employ some other standard of 
judgment in deciding what was to be included in the Constitu- 
tion. JTo the question whether a matter is of constituent 

character because it is contained in the Constitution or whether 



it is contained in the Constitution because it is constituent in 
character, a modern American may well answer that the first 
alternative v is correct j but, before a constitution is framed, only 
the second answer is possible. The first or formal answer 
becomes the natural and established one, as has been intimated^ 
with the passing of time. 

The American concept of a constitution, which views it as a 
specific document and which regards inclusion in its contents as 
the test of what is constitutional in character, is sometimes said 
to be a narrow concept of a constitution. The reason for this 
affirmation is that such a concept ignores the question of what 
characteristics distinguish the proper substance of constitutions, 
That this question, however, cannot be wholly ignored in 
America is indicated by the fact that judgments are not infre- 
quently encountered concerning the excessive length of State 
Constitutions and concerning inclusion in them of things which 
do not belong there. This clearly implies that a concept oi 
what is constituent in character may exist and that a standard 
of judgment may be employed which are independent of the 
Existence of a specific document. Manifestly, nothing else is 



THE NATURE OF THE ENGLISH CONSTITUTION 59 

>ossible where such a document does not in fact exist. This is 
precisely the situation in England. - 

No single document, of course, closely analogous to the Con- 
titution of the United States is to be found in England. Con- 
equently, a different concept of what a cohstitution is must and 
ioes exist. This concept inevitably looks primarily to sub- 
tance rather than to form. It judges the constituent character 
>f a given provision by the test of what sort of matter the pro- 
vision deals with, not by the test of where the provision is to 
>e found. This is sometimes said to be the broad conception 
>f the nature of a constitution as distinguished from the narrow 
rbnception, which goes no further than to identify a constitution 
tfith a specific document. 

The English concept of the nature of a constitution is a broad 
/iew for a very simple reason. Since the English Constitution 
:onsists not of provisions found in a particular place but of 
provisions of a certain kind, then everything of that kind must 
3e included, no matter where it is to be jound. In general, 
then, the English Constitution may be said to be composed of 
all provisions, whatever their form may be or wherever they 
may be found, that regulate the phenomenon of government. 
Inasmuch as the term government refers sometimes to certain 
individuals and sometimes to what they do, in other words, 
inasmuch as government is to be viewed partly as an organiza- 
tion and partly as a process, the English Constitution may be 
said to consist of the aggregate of provisions that determine the 
structure and the function of government in Great Britain. The 
testis, thus, one of substance. Any provisionor every provision 
is a part of the English Constitution if it plays any integral role 
in regulating the composition and organization of the agencies 
and organs of government and in determining the activities that 
they perform. This is not to say that the matter of source can 
be completely neglected. In reality, the answer to the question 
of what provisions make up the Constitution of England leads 
directly and naturally to the question of what kinds of provis- 
ions are involved or of where those provisions are to be found. 
The essential point, it may be reemphasized, is merely that 
such provisions are not constitutional in character because they 



6O THE ENGLISH CONSTITUTION 

are found where they are but that they are constitutional in 
character because they are closely concerned with the structure 
and function of government. When their nature has been 
determined, then, and only then, the question of their location 
becomes pertinent. As a matter of fact, the provisions of the 
English Constitution are to be found in several places. The 
kinds of places jn which they are actually found, the materials, 
in other words, that must be considered by the student who 
seeks the provisions determining the structure and function of 
British government are, in practice, frequently referred to as the 
SQurces or the elements of the English Constitution. 

In the broadest view, the stipulations of the English Consti- 
tution are generally recognized to find, as they may readily be 
seen to have, their sipis in two different but closely related kinds 
of provisions. The distinction involved is that between Law 
and what is commonly known as Convention. This means 
that some provisions of the English Constitution are legal in 
character, whereas others are non-legal or extra-legal. The 
two kinds of provisions are, oF course, in a practical sense 
intimately interconnected, in fact, they are inevitably similar, 
sitfce they serve the common purpose of regulating questions 
of the structure and function of government. Nevertheless, 
they are, logically, different one from the other. Therefore, 
the Law of the English Constitution and the Conventions of 
the Constitution are mutually exclusive. They may also be 
regarded as all-inclusive. If a given provision is a part of the 
English Constitution, it is either Law or Convention. 

English Law, according to the usual classification, is either 
Statute Law or Common Law. As a simple consequence, such 
parts of the English Constitution as are legal in character form 
either a part of the Statute Law or of the Common Law. 

Statute Law consists, in general, of formal enactments or 
of what may be called legislation. In England, this involves, 
for the most part, Acts of Parliament. Therefore, the student 
who would examine the parts that, fitted together, make up 
the English Constitution must concern himself extensively and 
frequently with statutes, or Acts of Parliament. Of course, 
such Acts as are not closely related to the structure and function 



THE NATURE OF THE ENGLISH CONSTITl/TION 6l 

of government are no concern of the student of the English 
Constitution. In other words, not all Acts* of Parliament, but 
only some of them, form part of the Constitution. Moreover, 
since the matter is ne primarily of substance and not of form, 1 
the statute that forms a part of the Constitution is not ear- 
marked as such. It is to be distinguished from statutes that 
are no part 'of the Constitution only by the fact that it is 
directly concerned with government. It is sometimes, in this 
respect, said to be a part of public law as distinguished from 
private law. 

Comparison again between the English and American Con- 
stitutions should serve to clarify the particular nature of the 
English Constitution and the way in whicJi statutes form an 
integral part of it. In this respect, perhaps the simplest con- 
sideration is the fact that many questions of governmental 
structure and function which are regulated in America by pro- 
visions of the Constitution are regulated in England by Act 
of Parliament. Thus, to take a simple example, the two-year 
term of the House of Representatives in America is provided 
for in the first Clause of the second Section of Article I of the 
Constitution of the United States; whereas the legal five-year 
term of the House of Commons in England is determined by 
the seventh article of an Act of Parliament known as the 
Parliament Act of 1911. In the English sense, it is true, this 
matter may be said, as in America, to be regulated by the 
Constitution. However, the point of the difference is clear 
enough. An Act of Parliament normally suggests comparison 
with an Act of Congress ; and yet, in the case of the present illus- 
tration, a document on a higher plane than an Act of Congress 
regulates a matter in a way that Congress cannot alter ; whereas, 
in England, an Act of Parliament regulates the same matter, 
and, moreover, an Act of Parliament may alter it. On the other 
hand, an Act of Congress may determine a matter, such as the 
size of the House of Representatives, which does not differ in 
substance from a similar matter for which there is provision 
in the Constitution of the United States or from an identical 
matter regulated by a constitutional provision in another so- 
called "written constitution," similar in kind to the Constitution 



62 THE ENGLISH CONSTITUTION 

of the United States. Such an Act of Congress is, in the Eng- 
lish sense, a part of ; the cohstitution. In the American sense, 
however, this is, of course, not true. 

Statutes form, of course, an extremely important part of the 
English Constitution. Of at least equal moment for the student 
of the Constitution is the matter of the relationship of this 
element of the Constitution to other elements. As a matter of 
fact, the principle involved is very simple. Statutes constitute 
an element that is in a definite sense superior to the others. 
From a technical legal point of view, statutes take precedence 
over any other element of the Constitution, in the sense that 
a statute, in case of conflict, will always prevail. This does not 
mean, of course, tfeat conflict is frequent or is normally to be 
anticipated. The legal relationship is merely rendered clear by 
the hypothesis. In reality, from the legal point of view, the 
validity of an Act of Parliament cannot be questioned j for 
no law on a higher plane than a statute exists that could contain 
the standard of judgment by which validity could be measured. 
This situation is in part the cause and in part the effect of what 
is known as the legal Sovereignty of Parliament or of the King- 
in-Parliament. , 

The far-reaching character of the legal power of the King-in- 
Parliament is sometimes alluded to in England through the 
aphorism that Parliament may do anything except make a man 
a woman. In reality, whatever may be the value of this state- 
ment for purposes of emphasis, it involves confusion in two 
ways. In the first place, if the power of Parliament be en- 
visaged wholly from the legal point of view, the proposition 
that Parliament cannot make a man a woman is inaccurate. 
Should Parliament for some reason incorporate a confusion of 
the sexes into a statute, then, legally speaking, a man would 
be a woman. Anomalies that are, perhaps, just as violent find 
their way from time to time into the law. On the other hand, 
if the question of the limitations on the power of Parliament 
be viewed as a practical rather than a legal matter, there can 
be no doubt but that Parliament would find many other things 
as difficult to accomplish as to make a man a woman. The 
two apparently conflicting conclusions are the result merely 



THE NATURE OF THE ENGLISH CONSTITUTION 63 

of looking at the same thing in two different ways. Much 
experience shows that failure to distinguish the legal and 
non-legal points of view is the cause of frequent confusion of 
thought. The two points of view are different, no matter how 
closely interconnected. 

From the legal point of view, an Act of Parliament, it may 
be repeated, cannot be declared invalid as being in conflict 
with a higher type of law. No such higher law exists. At the 
same time, the possibility will naturally suggest itself that 
two Acts of Parliament may be in conflict with each other. As 
a matter of fact, the problem involved is solved by the simple 
principle that a more recent Act of Parliament takes precedense 
over a less recent. In practice, an Act of. Parliament, when 
passed, may contain in it one or more provisions expressly re- 
pealing existing provisions of statute lawj but, even in the 
absence of such express repeal, any provision of an Act that 
conflicts with a provision already existing repeals automatically 
the earlier provision. 

The principle of the legal supremacy of Parliament and the 
principle that regulates the matter of two conflicting provisions 
of statute law help to explain the status of certain "fundamental 
and historical documents," which are sometimes referred to 
as a distinct element or source of the English Constitution. In 
reality, such "documents" possess the general character of 
statutes. Inasmuch as a statute forms part of the English Con- 
stitution only when it regulates some question connected with 
the structure or function of government, this very fact causes 
such a statute to be of more than average importance and 
interest. At the same time, from amongst statutes of this 
kind a list may undoubtedly be drawn up including Acts that 
for reasons largely historical are of outstanding importance even 
in comparison with other statutes regulating essential govern- 
mental matters. No objection, it would seem, exists to award- 
ing a place of honour to these historic "documents" ; but any 
recent statute, though it is unlikely to be in conflict with pro- 
, visions of these legal landmarks, would none the less in law 
take precedence over them. 

Well known "fundamental and historical documents" include, 



64 THE ENGLISH CONSTITUTION 

amongst others, such exan\ples as the Habeas Corpus Act, the 
several Acts dealing with the suffrage, and the Acts of Union 
with Scotland^and Ireland. Of even greater renown, perhaps, 
are the three parts that make up what the elder William Pitt 
called the Bible of the English Constitution, namely, Magna 
Carta, the Petition of Right, and the Bill of Rights. 

Magna Carta (1215) stands at the beginning of the Statutes 
of the Realm. This great document cannot without anachron- 
ism be literally considered an Act of Parliament \ but Acts of 
Parliament may, without undue violence to the facts, be re- 
garded as in direct line of descent from Magna Carta. Magna 
Carta is technically an enactment of the King, with the advice 
of his Great Counglj Parliament grew out of the Great Coun- 
cil y and, even at present, an Act of Parliament is technically 
enacted by the King, "with the advice and consent" of Parlia- 
ment. At all events, any and all provisions of Magna Carta 
may, legally speaking, be validty', repealed at any time by an 
Act of Parliament. 

Petitions of right, as is well known to lawyers, are employed 
in England at the present day. They serve very much the 
same purpose as is served by an action in the Court of Claims 
in the United States. In theory, they are addressed to the 
King. The famous document (1628) from the reign of Charles 
I (1625-1649) is shown to stand in a class by itself through its 
designation as the Petition of Right. Students of English His- 
tory will remember that both Houses of Parliament were as- 
sociated in presenting the Petition to the King and in securing 
his assent to it. The Petition of Right, therefore, does not 
differ in principle from an Act of Parliament. Moreover, the 
legal relationship between the Petition of Right and any later 
Act of Parliament is such that the Act of Parliament, in the 
unlikely event of conflict, must prevail. 

Finally, the relation between the great English Bill of 
Right? (1689) and an Act of Parliament is peculiarly interest- 
ing and instructive. This is especially true in connection with 
American practice. In the United States, certain provisions of 
the English Bill of Rights have, as is well known, been copied 
word for word, without the change of a comma, both into the 



THE NATURE OF THE ENGLISH CONSTITUTION 65 

Constitution of the United States and into various State Consti- 
tutions. These provisions, together with others that make up 
bills of rights in America, are, of course, limitations on statute 
making authority. As every student knows, an Act of Congress 
or an Act of a State Legislature must not, on penalty of being 
declared invalid, violate any part of the bill of rights involved. 
In England, on the other hand, the provisions of the Bill of 
Rights are, legally speaking, not of greater force than the pro- 
visions of any later Act of Parliament, the latter, it must now 
be perfectly clear, prevailing in case of conflict. Indeed, the 
student of history will remember that the English' Bill of Rights 
is, in the most literal sense, itself an Act of Parliament. In 
what were, legally speaking, conditions of revolution, acceptance 
of the Bill of Rights by William and Mary was made the condi- 
tion of their ascending the throne ; and then, when the regular 
constituent elements of the statute-making authority, Crown, 
Lords, and Commons existed again, the provisions of the Bill 
of Rights were enacted into law. 

Some importance, in this connection, attaches to provisions of 
administrative regulations emanating from governmental agen- 
cies and, more especially, to judicial decisions in their relation 
with Statute Law. As a_ matter of fact, conclusions in the 
whole matter depend largely on the theory of law that is 
accepted. In England, it is not altogether surprising to find, 
legal theory does not on the whole appear to assume very im- 
portant proportions. In general, one or the other of two views 
seems to prevail. In the first place, certain persons advocate 
a theory of the nature of law which is expressed in the pro- 
position that only Parliament can make law. All provisions 
that have the effect of law but are not literally contained in an 
Act of Parliament owe their legal character, according, to this 
view, to the fact that authority for their existence can be traced 
directly or indirectly to Parliament. Whatever may be the 
agency that in a practical sense has formulated their terms, these 
provisions are held to have been made, strictly speaking, by 
Parliament. An Act of Parliament contains in itself, so to say, 
both any administrative regulation for which authority may be 
found in its terms and any judicial decision that renders its 



66 THE ENGLISH CONSTITUTION 

meaning clearer. In the latter respect, the judges, according to 
this view, <lo not, strictly speaking, make law. They, in reality, 
merely discover in the law meaning that was there undetected 
in it all along. The whole view, many persons feel, is highly 
abstract. It may fit the facts with a kind of accuracy j but it 
appears rigid and forced. What it gains in unity and apparent 
simplicity, it more than loses, according to those who do not 
accept it, in its remoteness from matters of practical experience. 
For these reasons, a second view is, in the opinion of many 
persons, more acceptable. This second and more practical view 
involves the relatively simple concept of "non-sovereign law- 
making bodies." As this phrase clearly implies, other agencies 
than Parliament ar recognized to make law in practice. Such 
agencies should not, of course, attempt to make law beyond 
their recognized authority j but Acts of Parliament, instead of 
being viewed as containing in them everything done by their 
authority, are considered merely to define the spheres within 
which administrative officials, local councils, and other non-sov- 
ereign bodies make law. In the same way, this view recognizes 
frankly th^t judges make law. A judicial decision may in prac- 
tice result in legal relations that for practical purposes cannot 
be said to have existed before the decision was made; and, 
according to this second theory, no practical purpose can be 
served by denying that this involves judge-made law. At all 
events, whichever view is accepted, the general nature of Statute 
Law as an element of the English Constitution need not be 
obscured. 

The matter of judicial decisions and of their relationship to 
Acts of Parliament forms, perhaps, the simplest transition from 
Statute Law to the other great division of English Law, 
namely, the Common Law. The bulk of the Common Law 
is closely connected with judicial decisions. The simpler 
aspects of the matter appear clear enough, though statements 
concerning them vary to some extent with the legal theory 
assumed. If only Parliament makes law and the Common Law 
is law, then Parliament must make it. Such a view may be 
supported by the argument that Parliament, which may at any 
time change the Common Law, in effect enacts it by not' molest- 



THE NATURE OF THE ENGLISH CONSTITUTION 6j 

ing it. This argument was strikingly phrased by John Austin, 1 
who stated that "what the sovereign permits, he commands." 
This somewhat forced analysis would, if consistent, make Par-- 
liament the source of a provision of the Common Law and, 
moreover, the source of a judicial decision declaring the pro- 
vision. On the other hand, even if the Common Law be 
considered historically rather than analytically, that is to say, 
without regard for its present relationship to Parliament and 
Statute Law, the two different views of judge-made law may 
still be applied. In the one case, the judges are said not to 
have made but to have discovered the Common Law, which, 
in this context, would have to be regarded as having existed 
since time out of mind. The other view \\iould insist that for 
all practical purposes judges make, or historically did make, the 
Common Law. 

However all this may be, the great body of the Common 
Law contains numerous provisions that are intimately concerned 
with the structure and function of English Government and 
that are, accordingly, part of the English Constitution. That 
these provisions are, from an analytical point of view, subject 
to modification or abolition by provisions of Statute Law should 
not be conceived as implying that Common Law and Statute 
Law are frequently in conflict. On the contrary, they are by 
nature such that conflict is in practice unlikely. They normally 
supplement each other. Statute Law assumes, so to speak, the 
existence of the Common Law. The latter is, as it were, the 
basis on which the former rests; or, to change the figure of 
speech, it serves the function of mortar, binding together .the 
bricks, which in this figure statutes are. For example, one of 
the historic documents of the English Constitution, the Act of 
Settlemeat of 1701, in regulating the matter of succession to 
the throne, 2 not unnaturally has occasion to refer to heirs. This 
represents a simple assumption of the existence of the Common 
Lawj for the Common Law regulates the matter of heirs in a 

1 Austin (1790-1859) delivered lectures on Jurisprudence at Uni- 
versity College, London, that arc commonly considered to establish his posi- 
tion as father of the modern English Analytical School of Jurisprudence. 

2 Cf. Ch. VIII, p. 96, infra. 



68 THE ENGLISH CONSTITUTION 

well-established and well-understood manner. Hence, the fact 
that the present sovereign, rather than some other, occupies the 
throne is due, so to say, to Statute Law and Common Law, 
acting together in a mutually supplementary way. 

In England, law is not infrequently defined as consisting, for 
practical purposes, of such rules as the courts will enforce. This 
clearly emphasizes the sanction of law as its characteristic fea- 
ture and, moreover, associates the binding character of certain 
rules of conduct with legal sanction. Such emphasis and asso- 
ciation should not and, indeed, cannot obscure the fact that there 
exist many rules without legal sanction which are just as bind- 
ing, to say the least, as rules of law, in the sense that their 
violation is, if anything, less frequent in practice than the vio- 
lation of rules of law. In reality, it is perhaps fair to say that 
typical rules of a binding though non-legal character are such 
that their violation is all but inconceivable. Since compliance 
with these rules is confidently anticipated, they have no need 
for sanction of the legal type. 

Many binding rules of a non-legal character determine im- 
portant rqatters often matters of transcendent importance 
connected with the structure and function of English Govern- 
ment. They are what have come to be known as Conventions 
of the Constitution. t The most familiar example, perhaps, of 
this kind of rule is the Convention which requires that the 
Cabinet must possess the confidence of a majority of the House 
of Commons. 1 The far-reaching character of this and many 
similar Conventions would be difficult to overemphasize. In 
the absence of these Conventions, the structure and function of 
English Government, and hence the English Constitution, 
might well be very different from what they are. At all events, 
these Conventions effectively regulate various matters of gov- 
ernment. To raise the question of their violation is in large 
measure fruitless j for they are not violated. Absence of legal 
sanction has no real bearing on the effectiveness of the Con- 
ventions. The concept of such sanction merely serves as a basis 
for classification and as a practical means for distinguishing 
Law and Convention. This is not to say that the question of 

1 V., Ch. IX, p. 128, infra. 



THE NATURE OF THE ENGLISH CONSTITUTION 69 

theoretical violation of the Conventions of the Constitution is 
never raised. The question merely belongs to the realm of the 
highly theoretical and the hypothetical. Violation of a law 
normally leads to a definite set of consequences; for violation 
is anticipated by the very act of establishing a sanction. So, 
from the nature of the case, an intimate interconnection exists 
between the two facts that, in the first place, Conventions are 
without legally defined sanctions and that, in the second, vio- 
lation of Conventions is not anticipated. This means, in turn, 
that the consequences of violation are problematical and that, 
hence, the question is one that peculiarly lends itself to "hypo- 
thetics." Slightly more importance, perhaps, attaches to the 
question, which is also largely theoretical, why the Conventions 
are so scrupulously observed. 

The effectiveness of the Conventions of the English Consti- 
tution would seem to be a particular case of a general phenom- 
enon. Not much observation is necessary in order to estab- 
lish the proposition that many people do many things regularly 
and unfailingly without well-defined constraint. The simplicity 
and the certainty of the fact are merely to be contrasted with 
the complexus of circumstances connected with the origin and 
nature of any given case of fixed custom. President Lowell 
has suggested * that, in the case of the Conventions of the 
English Constitution, scrupulous regard for them is to be ex- 
plained in terms of habits of thought and of action associated 
with the traditional ruling class in England. According to 
this view, the Conventions of the English Constitution are a 
sort of code of honour, with which a homogeneous class is ac- 
customed to comply, or are a set of rules of the game, by which 
the same class is accustomed to play. The view is no doubt an 
interesting commentary by a foreigner on a particular English 
characteristic. It does not, however, seem to allow for the 
undoubted appearance of the same phenomenon elsewhere. 
In France and the United States, for example, many matters of 
government are regulated by fixed custom of the same sort. 
In fact, more rpatters are so regulated than is commonly sup- 

1 The Government of England (New ed., 2 vok, New Yorfe 
Vol. I, pp. 1 1 et seq. 



7O THE ENGl-lSH CONSTITUTION 

posed. The fact would thus seem to be that what are in Eng- 
land called Conventions of the Constitution are by no means 
confined to that country. They merely, for historical and other 
reasons, exist and operate there on a wider scale than elsewhere. 

President LowelPs comment on the question of the binding 
character of Conventions of the English Constitution grows out 
of his discussion of a 'view that is taken of the matter by the 
late Professor Dicey. Professor Dicey's view 1 is clearly that 
of a lawyer. It is, in essence, that the Conventions of the 
Constitution, though technically without legal sanction, possess 
indirectly a sanction connected with Law, in the sense that Law 
and Convention are very intimately associated and, as a conse- 
quence, violation of Convention would inevitably lead to viola- 
tion of Law. Whether those who comply with Convention 
are conscious of this consideration or are unconsciously affected 
by it is very uncertain. However that may be, the close con- 
nection between the Law and Conventions of the English Con- 
stitution is exceedingly important. 

In England, the Law of the Constitution, in which a large 
part of ij:s theory is contained, remains in many respects in 
unchanged traditional form. This is attended by manifest ad- 
vantages for sentiment and for historical understanding. On 
the other hand, owing to the manner in which Convention sup- 
plements Law, the disadvantages of unchanged Law are largely 
avoided. So long as the way in which things are actually done 
can without hindrance be adapted naturally and easily to chang- 
ing practical needs, the formalism and pageantry of an earlier 
time may, it would seem, be continued in legal theory without 
harm; and violent and sudden change may be avoided. Indeed, 
a wide difference between theory and practice is, perhaps, the 
most characteristic quality of the English Constitution. 

1 V., Introduction to the Study of tfo Constitution (8th ed., London, 
P- 435 " '*f. 



CHAPTER VII 

THE ORIGIN AND DEVELOPMENT OF THE 
ENGLISH CONSTITUTION 

Perhaps in no country is the study of history so important 
for the study of government as in England. Indeed, it would 
be difficult to overestimate the importance of English History 
for the study everywhere of political and legal institutions. In 
England, such institutions have developed in a natural and al- 
most unbroken manner for centuries. What in these matters 
appears to be more the working of nature than of man is full 
of instruction. 

The beginning of the history of what would be called today 
the central or national government in England, that is to say, 
of the government of the country as a whole, may for conven- 
ience be dated from the Norman Conquest in 1066. This does 
not mean, of course, that government in England on a scale 
larger than the local had no history previous to the eleventh 
century. It is merely that the consolidation of the country 
was primarily the great work of the Normans. At their com- 
ing, they found well established local governments; and, for 
this reason, the periods that antedate the Norman Conquest 
are exceedingly important for the study of English Local Gov- 
ernment. The Normans, according to a convenient generaliza- 
tion by special students of the period, left this local govern- 
ment largely as they found it. They devoted their attention 
primarily to the firm establishment of government on a larger 
scale. 

Such consolidation of England as existed ajt the time of Wil- 
liam the Conqueror was, of course, the work of Teutonic Tribes 
which had, from the fifth century on, following the departure 
of the Romans, ^overcome parts of the country. The West 
Saxons, more ? specially, extended their sway far enough in the 

71 



72 THE ENGLISH CONSTITUTION 

course of time for England to be thought of as having from 
the seventh to the eleventh century an embryonic national 
government. The process by which this government was de- 
veloped is far from well known j and its study is the occasion 
of much controversy. However, on the eve of the Conquest, 
the outlines of the system were fairly well established. 

One of the things that the Teutonic Tribes accomplished in 
the process of settling England was to develop the phenomenon 
of kingship. Indeed, the existence of many kings in Anglo- 
Saxon England must have rendered the concept of a royal 
leader exceedingly familiar. At all events, the simple fact is 
that England passed through periods of being divided into 
numerous kingdoms before any unification worthy of the name 
took place. This unification was in part caused by Danish in- 
vasion and was in part the work of West Saxon kings. 

The King was a leader. His strength and his position na- 
turally varied according to his personal qualities. In general, 
he may be thought of as personifying in some degree a physical 
and a spiritual force, the combination of which must be thought 
of as the basis of all government. In respect of physical force, 
an early King was, of course, commander-in-chief of certain 
armed forces j and his position was in considerable measure 
determined by his prowess as a military leader. On the other 
hand, the conversion of England to Christianity in the seventh 
century and the subsequent ecclesiastical organization of the 
country strengthened the monarchy. The King thought of 
officers of the Church as well as those of the State as his officers. 
He took an oath to preserve the Church. He likewise thought 
of himself and was thought of as the guardian of the peace of 
the realm. 

An occasion on which the Anglo-Saxon King could avail 
himself of the advice and assistance of the principal secular and 
ecclesiastical figures of the realm was the formal meeting of 
an assembly of what were known as the witan, or counsellors. 
This assembly was summoned by the King, usually once a year, 
and sometimes oftener. It is not to be thought of as possessing 
well defined duties or powers. In modern terms, its functions 
were primarily administrative. According to what seems the 



ORIGIN AND DEVELOPMENT OF CONSTITUTION 73 

best evidence, the witan possessed a limited judicial aspect, the 
only appeal in matters of justice, which was primarily adminis- 
tered locally, lying to them. To speak of the assembly as mak- 
ing laws in the modern sense is misleading. On the other hand, 
the assembly was legislative in the sense that the King naturally 
sought the advice of the witan when he had occasion to modify 
existing law or to cause existing law to be reduced to written 
form. 

The relation between the King and the witan naturally 
varied with the personal qualities of both. At all events, there 
can be little doubt but that, in the course of time, the witan 
inevitably came to be, to some extent, what we should call a 
"check" even on a strong King. In general, the Anglo-Saxon 
central government may, perhaps, be thought of as embryonic. 
Governing, which was largely of a routine character, with judi- 
cial and legislative functions in considerable measure incidental, 
was the business of the King, assisted by other not very highly 
developed or very well defined agencies. 

The Norman Conquest almost certainly affected the central 
government in a profound way. Through developments that 
are a special study in themselves, but that are connected with 
what is commonly called the "feudal system," the central gov- 
ernment was greatly strengthened. The important considera- 
tion is that, from the government established at that time, the 
government of the present day has evolved. 

Whether government be viewed as an organization or a pro- 
cess, it is, of course, in the twentieth century a highly compli 
cated and complex affair. The multitudinous affairs that gov- 
ernment attempts to deal with are matched by a great variety of 
agencies. In turn, these agencies and what they do scarcely 
lend themselves to examination unless they be thought of as 
falling into classes and branches, divisions and subdivisions. 

The common practice o^ thinking and speaking of govern- 
ment as falling into branches is merely one of several examples 
that illustrate how natural it is to deal with government in 
terms of simple biological analogy. These terms involve an 
analogy between evolution and the history of government. The 
structure of government is assimilated to that of an organism 



74 THE ENGLISH CONSTITUTION 

and the process of government to organic function. Thus, the 
development or evolution of government is conveniently and 
profitably to be viewed in terms of the interrelationship between 
structure and function. 

vXln connection with all history and experience, development 
may be thought of as growth in complexity of structure and 
function. When structure experiences this growth in complex- 
ity, it is commonly said to> become more differentiated. Hence, 
the reciprocal relationship between structure and function in- 
volves the elementary rule that simplicity of function is at- 
tended by undifferentiated organic structure, and undifferen- 
tiated structure is attended by simplicity of function, whereas 
complexity of function and a differentiated structure are 
natural concomitants. 

If nature suggests these simple considerations, then they 
should be applicable to the growth of government where its 
development has been natural. As a matter of fact, precisely 
such natural organic growth is generally considered to be a 
characteristic feature of English political experience. Conse- 
quently, the highly differentiated structure and highly complex 
function of twentieth century English government, with its 
branches and its divisions and subdivisions, must have developed 
from a day when function was relatively simple and structure 
was largely undifferentiated. In reality, this seems to be the 
most profitable way of viewing the matter. 

The structure of present day central government in England 
may be thought of as having grown, in the course of centuries, 
out of the relatively undifferentiated institution, the Norman 
Kingship. As Louis XIV is reported to have said of himself 
six hundred years later, William the Conqueror was the state, 
that is to say, he was the government. This would mean, if 
biological analogy is applicable, that the function of government 
in William the Conqueror's day was, like its structure, simple. 
In reality, precisely this was the case. The problem of govern- 
ing at that time involved for the most part attention to routine 
business. All this business was of concern to the King, who, of 
course, made no distinction between, as he had in the modern 
sense no knowledge of, what we should call administration, 



ORIGIN AND DEVELOPMENT OF CONSTITUTION 75 

adjudication, and legislation. Such distinctions, it must be re- 
membered, came later with the passage of time. Growth in 
complexity of function and a concomitant differentiation of 
governmental institutions must be thought of in terms of cen- 
turies. 

Even in the beginning, of course, -the King could not in any- 
literal sense attend personally to all the business of government. 
He was constrained to seek the assistance of other men. Thus, 
the King is to be thought of as having agents and as being sur- 
rounded by counsellors. The group more immediately around 
him was known as a council. The King's Council was, thus, an 
element in an embryonic governmental structure. It was, in 
general, analogous to the Anglo-Saxon assembly of the witan; 
and certain students of history, to whdm the continuity of his- 
tory appeals, emphasize the identity of the two bodies. 

It is, perhaps, well to think of the Norman King's Council 
as a feudalized Anglo-Saxon assembly. The Council of Wil- 
liam the Conqueror and his successors was undoubtedly much 
affected in its nature and its relation to the King by the existence 
of the complex phenomenon known as feudalism. In general, 
it may be said that relationships and activities which we should 
regard as being public in character possessed characteristics which 
we should consider private. Indeed, the evolution of the first 
concept out of the second was one part of the development 
of modern government. 

The counsellors of the King seem, in their collective capacity, 
to have been called from the beginning not only the King's 
Council but also the King's Court, or the Curia Regis. Out of 
the King-in-Council, an expression and concept surviving to the 
present day, or, in other words, out of the King's Court, the 
twentieth century structure of English government was evolved., 
This took place, according to the suggested biological analogy, 
by differentiation. The activities performed by the Council 
were in the beginning relatively simple j and King and Council 
must have applied themselves to business as it came to them, 
without the distinctions that are so familiar to us. By the same 
token, the Curia Regis was undifferentiated. The Court as a 
whole concerned itself with routine business as a whole ; and 



76 THE ENGLISH CONSTITUTION 

this business, it may be emphasized, is to be thought of both as 
what we should now call administrative and as what we should 
call private. In the course of time, differentiation of structure 
and greater complexity of function developed together. In- 
creased business must have given rise, as time went on, to some 
division of labour^ and, in the result, an agency that confined 
itself mostly to one kind of activity tended to assume a certain 
autonomy, that is to say, to become distinct from, or an offshoot 
of, the Council. Thus, differentiation took place through spe- 
cialization and institutionali'zation. 

It is not difficult to imagine that the King and his Court had 
from the beginning a special interest in financial matters. This 
fact constitutes a simple starting point in the differentiation of 
the King-in-Council. A first step was the establishment of the 
institution known as the Exchequer. Specialization must have 
developed naturally and even unconsciously. No doubt the 
King's Court, after a relatively short period of attending to 
items of business in any order they might come up, arrived at 
the realization that it would be better to group items of a 
similar kind and to treat them together. Questions of a finan- 
cial character were a natural beginning. Revenue in the form 
of taxes and feudal dues had to be received and audited j assess- 
ments had to be made; and disagreements had to be settled. 
All this business of the King 'was attended to for him by the 
members of his Court. In practice, they collectively dealt as 
a body with matters of this kind, or they went out into the 
country with a view to accomplishing the same purpose indi- 
vidually. In the first respect, the King's agents got into the 
habit of holding special sessions for financial business. More 
especially, a session was held twice a year at which revenues 
brought in by the King's local agents, the sheriffs, were re- 
ceived. In such matters, a system of accounting was employed 
that involved the use of a square-checked cloth; and this re- 
sulted in the name Exchequer for the autonomous institution 
that was in the process evolved. 

The Exchequer is merely an early and important example 
of a differentiated organic governmental branch or member 
which possessed a character that we should at the present day 



ORIGIN AND DEVELOPMENT OF CONSTITUTION 77 

regard as administrative. Other members or parts, of course) 
came into existence in the course of time through the same 
process of differentiation. Today, the administrative branch 
of government is, as is well known, the most technical, the 
most complicated, and the most extensive of the great divisions 
of government. 1 The development, it must be remembered, 
representing, as Herbert Spencer said of evolution in general, 
"a continuous change from indefinite incoherent homogeneity 
to definite coherent heterogeneity of structure and function, 
through successive differentiations and integrations," is to be 
thought of in the perspective of centuries. 

If the executive branch of government is, in a definite sense, 
'to be thought of as the first to exist historically, second place 
must go to the judiciary. Indeed, as may easily be under- 
stood, the function- of judging grows simply and naturally out 
of the function of administration. If dealing with any item 
of business gives rise to uncertainty, to disagreement, and to 
controversy, the item cannot be finally dealt with until the 
controversy is settled. Thus, administration involves as a part? 
of itself, so to say, adjudication. A simple example may be 
seen in financial administration. As a matter of fact, the judicial 
branch of English Central Government seems to have had its 
origin in the settlement of financial disagreements. Such set-, 
tlements were at first the work of the Curia Regis as a whole 
or of its individual members who were administering the King's 
business at some point in the country. As the occasions for 
judging became classified, specialization again took place j and 
functions that in the beginning were performed by the undiffer- 
entiated King's Court came to be the special business of courts 
in the modern sense of the word. A beginning is to be thought 
of, it may be repeated, in connection with the Exchequer and 
the performance of its tasks, either in a body or by its members 
"on circuit." 

The development of the judicial branch of English Central 
Government is to be thought of primarily in terms of (a) de- 
velopment of the system of travelling justices and (b) estab- 
lishment of three great Common Law Courts, as they are called. 

1 Cf. Part IV, Section I, infra. 



78 THE ENGLISH CONSTITUTION 

These courts were (i) the Court of the Exchequer, (2) the 

Court of Cpmmon Pleas, and (3) the Court of the King's 

Bench. Here again the perspective should be that of centuries 

;nd the analogy that of outgrowths from the King's Court. 

The differentiation, so far as the three Common Law Courts are 

oncerned, may be thought of as having been effected by the end 

f the thirteenth century. Therefore, the reigns of William the 

Conqueror and several of his successors were involved. The 

dates of these reigns, it may be recalled, were as follows: 

William I, 1066-1087 1 / ^ ^ \ 
William II, 1087-1100 I (nth century) 



Henry I, 1100-1135 
Stephen, 1135-1154 
Henry II, 1154-1189 
Richard I, 1189-1199 

John, 1199-1216 
Henry III, 1216-1272 
Edward I, 1272-1307 



( 1 2th century) 



(i3th century) 



The establishment of the Court of the Exchequer is inex- 
tricably connected with the development of the Exchequer as 
an institution for financial administration. The Exchequer, it 
has been seen, was gradually evolved, and became an offshoot 
of the Curia Regis. Though special attention must have been 
given to financial matters in the period following the Norman 
Conquest, and even before, the organization of the Exchequer 
into a genuinely efficient institution appears to have been the 
work of Henry I. The following reign consisted of nearly 
twenty years of civil disorder and war; but the reign of Henry 
II was notable for many reasons. Among other things, judicial 
business greatly increased ; and the Curia Regis was called 
upon to settle many controversies. More especially, litigation 
growing out of financial business was adjudicated by the Ex- 
chequer both in its collective capacity and by its individual 
members when they proceeded into local communities for the 
purpose of doing the King's business. In this second respect, 
travelling agents of the King appear to have been irregularly 



ORIGIN AND DEVELOPMENT OF CONSTITUTION 79 

used even before the Norman Conquest. They were certainly 
used tor special business in the reign of William the Conqueror 
and his immediate successors. However that may have been, 
tours or circuits of these agents, who were early called justices, 
became systematically arranged in the reign of Henry II. Thus, 
in the course of time, the members of the Exchequer barons, 
as they were called concerned themselves with business of a 
character that we should now consider judicial, sufficient in 
quantity for a Court of the Exchequer to become a well-defined 
institution. Furthermore, with the establishment of the other 
Common Law Courts and with the growth of judicial business* 
competition caused the Court of the Exchequer to invent certain 
fictions in order that it might extend its jurisdiction to contro- 
versies that were not in reality directly connected with fiscal 
matters. 

Henry II not only established in more systematic and spe- 
cialized form the practice, which we know today, of sending out 
circuit judges to administer justice j he set up in the Curia Regis 
a special "bench" of five professional judges. Though the 
circuit judges are to be thought of as holding a meeting of the 
Curia Regis in local communities, early descriptions inevitably 
recognized a distinction based on the simple physical fact that 
the itinerant justices conducted sessions that were not cor am 
rege, that is to say, not in the presence of the King. More- 
over, in the second respect, no clear distinction was made for 
some time between items of judicial business done by the Curia 
Regis as a whole and those attended to for it by the professional 
judges. This means that only with the passage of time did the 
Court of Common Pleas and the Court of King's Bench become 
distinct courts in the more modern sense. As a matter of fact, 
the development of these central law courts depended on a 
marked growth, which took place especially in the reign of 
Henry II, in the amount of central judicial business. The 
growth meant in general a corresponding decrease in the busi- 
ness of the local courts. The whole phenomenon is to be 
attributed to two especial causes. The first was that Henry II, 
an able King following the strife-ridden period of Stephen's 
rei^n, was determined to extend further the consolidation of 



80 THE ENGLISH CONSTITUTION 

the central authority, begun by William the Conqueror and his 
sons. Thus, he commanded that certain matters shoind be 
decided only by central authority. In addition to that, Henry's 
reforms in trial procedure caused royal justice to become, in 
the eyes of serious litigants, more attractive than local justice. 
In this connection, the employment of the jury, in a form from 
which our present practices ultimately developed, was not the 
least important. No difficulty attaches to understanding that 
a person really seeking justice should naturally prefer trial by 
jury to the forms of trial by* ordeal that were to be found in 
the local courts. 

The cases in which the King was more especially interested 
were either those that involved important persons or those 
that involved certain kinds of situations. In this may be seen 
the germ of the distinction that we make at present between 
civil and criminal causes, though here again, of course, the 
distinction became fully developed only with the passing of 
time. The cases between private individuals were known as 
common pleas j and, as the amount of such business grew, diffi- 
culty on the part of litigants and their witnesses in following 
the King on his wanderings through the country and even into 
Europe caused importance to attach, aside from the distinction 
between cypcuit judges and the Curia Regis as a body, to a dis- 
tinction between cases heard by the Curia in the actual presence 
of the King and those in which the King's presence was not re- 
quired. In Magna Carta, King John promised that common 
pleas should be heard at one central point; and, in the end, a 
Court of Common PJeas at Westminster was the result. There 
remained pleas of the crown, cases which we should now call 
criminal cases, that is, that came to be considered breaches of 
the King's peace. In the course of time, these gave rise to 
the Court of King's Bench. As a result of the long process of 
differentiation, the three great Common Law Courts may be 
regarded as having independent existence and even competing 
jurisdiction by the reign of Edward I. 

If the twelfth and thirteenth centuries are especially to be 
thought of as th principal period in which the three great 
central law courts became, by a process of differentiation, off- 



ORIGIN AND DEVELOPMENT OF CONSTITUTION 8l 

shoots of the Curia Regis, they are likewise memorable as the 
period during which the development of the English system of 
law, that is to say, the Common Law, took place. As is not 
difficult to imagine, the consolidation of the kingdom and the 
administration of royal justice, whether in a central court or by 
justices on circuit, involved the application of rules of law of a 
general character. The judges, in employing such rules as 
appeared in the circumstances to be applicable, tended to strip 
them, so to say, of any local, special, or accidental characteristics 
they might possess, and, in that way, to render them applicable 
to similar cases that might arise again at different times and at; 
different places. In the result, there was evolved a body of 
law common to the whole realm. This system of Common or 
English Law and the system of Roman Law are usually said to 
be the only great legal systems that the western world has 
produced. One or the other of these systems forms the basis 
of the law of practically every civilized western country. The 
Common Law is the basis of the law in most English-speaking 
communities, more especially in the States of the United States. 
In the growth by differentiation of the various agencies of 
English Central Government from the Curia Regis, the four- 
teenth century is especially notable in connection with' the evolu- 
tion of the legislative branch of government. This does not 
mean, however, that the judicial branch did not continue to 
undergo important development. On the contrary, aside from 
further evolution along lines already established, the fifteenth 
century witnessed the development of an entirely new judicial 
offshoot of great importance. This is, of course, the Court of 
Chancery. It was the court of the Chancellor, the "keeper of 
the King's conscience"; and it administered justice through the 
application of the rules of Equity in contradistinction to the 
rules of the Common Law. The Chancellor, an officer who 
even antedated the Norman Conquest, was in the beginning an 
ecclesiastical official at the head of the King's chapel. The 
office was at first apparently not highly important. However, 
as the administration of royal justice increased in importance, 
the position of the Chancellor assumed greater proportions. 
The Chancellor was, as a high ecclesiastic, an educated man, 



82 THE ENGLISH CONSTITUTION 

learned in Roman Lawj and, in connection with the growth 
of the Common Law, he was in charge of the important activity 
of issuing writs. In order to carry out his work, he surrounded 
himself with other ecclesiastics, Masters in Chancery, who were 
likewise educated men, learned in the Roman Law. As the 
Common Law grew into a system, it became, as is well known, 
somewhat rigid. Consequently, with respect to certain contro- 
versies, the Common Law was silent, was insufficient, or, if 
applied, would have worked an injustice. There existed, thus, 
aja obligation that rested upon the King to compensate for the 
shortcomings of the royal courts and the royal justice. This he 
did by assuring an equitable solution. He formed the habit of 
submitting the problems involved to his Chancellor , and in the 
course of time more especially in the fifteenth century the 
Chancellor established certain rules for the settlement of the 
several kinds of situations involved. These rules became the 
rules of Equity. They were applied in a Court of Chancery. 
Though they are to be distinguished from the rules of Common 
Law, they are to be thought of as being supplementary to rather 
than as being in conflict with the Common Law. 

The establishment by differentiation of the Common Law 
Courts, the Itinerant Justices, and the Court of Chancery did 
not exhaust, so to say, the Curia Regis as a judicial agency. 
On the contrary, this Council retained a sort of residual con- 
nection with the administration of justice; and this connection 
survives today, as is well known, manifesting itself in the 
judicial functions of the Privy Council and the House of Lords. 
The Common Law Courts and the Court of Chancery, as 
the centuries passed, continued to form the basis of the judicial 
system. Likewise, certain additions were from time to time 
made in the form of special courts. This remained the situation 
until the whole central judicial system was reconstructed to- 
wards the end of last century. 1 

It is a point of no little interest that the legislative branch 
of government, which in modern times has assumed a position 
of definite primacy with respect to the other two great branches, 

*Cf. Ch. XV, p. 233, infra. 



ORIGIN AND DEVELOPMENT OF CONSTITUTION 83 

was historically the last of the three to be evolved. In Eng- 
land, this development is to be considered, as in the case of 
other growth, the result of a gradual differentiation undergone 
by an undifferentiated group of agents surrounding the King. 
In this respect, an especially important consideration is the fact 
that the Court, or the Council, of the King possessed two forms, 
a large and a small. Though terminology came to recognize 
the existence of the two forms through a not unnatural refer- 
ence to a Great Council and a Small Council, somewhat, for 
example, as a balloon with small and large amounts of air in 
it might be referred to respectively as a small and a large 
balloon, nevertheless, it is well to remember that the Great 
Council and the Small Council were different forms of the same 
thing. The distinction was the basis for differentiation; but it 
was merely the beginning of differentiation. Since differen- 
tiation is inextricably connected with specialization of function, 
the important consideration is that, to employ modern terms, 
the powers and functions of the Council in its two forms were 
the same. Both were in the beginning the King's Court. This 
fact explains some of the most important aspects of modern 
government. Without it, a large part of modern terminology 
would even be unintelligible. Without it, for example, no 
understanding would be possible of the fact that the same 
word is applied to the place where American debutantes are 
presented^to the King and Queen of England, to the place 
where laws are made in Massachusetts, and to the various 
places, as for example in Fleet Street in London, where justice 
is administered. 

The legislative branch of English Central Government was 
developed from the Council in its large form. In. the process 
of evolution, the Grand Council had by the middle of the 
fourteenth century become the House of Lords of the English 
Parliament. Therefore, this House, it may be seen, is in direct 
line of descent from the Anglo-Saxon assembly of the witan. 
By successive steps, which are worthy subjects of detailed study 
by special students, the assembly of the witan became after the 
Norman Conquest a feudal court, that is, the Curia Regis $ a 
peerage was gradually developed; and this peerage became the 



84 THE ENGLISH CONSTITUTION 

constituent element of the House of Lords. By a series of 
related steps, the House of Commons came into existence. 

The bicameral structure of t^ie English Parliament has, as 
is well known, been so influential that legislatures the world 
round have felt the effects j and yet the fact is sometimes lost 
sight of that the original two chamber arrangement was not 
the result of conscious planning. It grew naturally, and to a 
certain extent accidentally, out of the King's Council. This 
body, which in the thirteenth century came at times to be 
called Parliament, slowly changed in composition and activity. 
More especially, it became connected with local affairs through 
an important class of men, the Knights. These men came 
to assume an interest and a leadership in what went on in the 
local communities, the Counties ; and they came to be looked 
on as speaking for the Counties. If some question was passed 
upon locally and a report was sent to the King through Knights 
chosen for the purpose, the Knights were presumably little more 
than trusted messengers. If the King summoned Knights to 
the Council, they performed on a national scale a kind of jury 
duty that tjiey were accustomed to perform locally. The result 
was "a great inquest of the nation." Moreover, it is not diffi- 
cult to imagine that the phenomenon of representation grew 
out of such a germ. The King's need for money, especially 
with a view to prosecuting wars, was a primary and increasingly 
frequent occasion for the King to summon to the Ccjpncil cate- 
gories wider than that of the great persons who usually at- 
tended. In the end, representation became complete when 
representatives from the urban business communities, that is, 
Burgesses from the Boroughs, received a summons. This mo- 
mentous step was taken for the first time in the reign of Henry 
III, when in 1265 *h e King, under the compulsion of Simon 
de Montfort, caused two Burgesses from each Borough to be 
present at a meeting of the Council. This action, as is well 
known, subsequently gained for Simon de Montfort the title 
of Founder of the House of Commons. However, attendance 
by the Burgefcses was not established immediately as a regular 
practice. On later occasions, they were at times not summoned. 
Nevertheless, as time went by, the habit grew of having Knights 



ORIGIN AND DEVELOPMENT OF CONSTITUTION 85 

from the Counties and Burgesses from the Boroughs present at 
Council meetings.. As is well known, a meeting of 1295 in 
the reign of Edward I came to be called, on account of the 
full and complete character of its membership, the Model Par- 
liament. It was out of meetings thus composed that a bicameral 
Parliament was evolved. 

The persons present at a full Parliament fell into several 
different classes. In the first place, there were the Great 
Barons. In the second place, there was the Clergy. This 
class, in turn, may be subdivided into the Upper and the Lower 
Clergy. The former were not only ecclesiastics, but Barons as 
well; whereas the Lower Clergy was present by representa- 
tion. The Knights formed a well-defined class, and the Bur- 
gesses another. In the circumstances, it would seem that any 
one of several things might have happened. As a matter of 
fact, out of the several elements two houses were finally formed. 
An important determining factor was the fact that the Lower 
Clergy ceased to attend the meetings of the Council. They 
had their own meetings at Canterbury and York; and they 
preferred to vote their money contributions there. This caused 
the Upper Clergy to join with the Great Nobles; so that the 
Clergy did not constitute a separate element, or estate, as it was 
called in Europe. Even so, with the Lower Clergy absent and, 
consequently, no separate meeting of the Clergy, several things 
might still have happened. The Knights, being themselves of 
noble class, might have joined with the Great Nobles and the 
Upper Clergy. If, in this case, the Burgesses had been incor- 
porated as well, the result would have been a single body, an 
outcome that actually occurred in Scotland. If, in the same 
case, the Burgesses had formed a house to themselves, such a 
house would have been a very different house from the House 
of Commons that was actually established. On the other hand, 
the Knights might have themselves decided to form a separate 
house, as happened in Aragon. What actually happened was 
that the Knights joined with the Burgesses; ind the result was 
the bicameral structure that has since become so famous. Just 
when this situation became a definite certainty it is apparently 
impossible to say with exactness. The highly important event 



86 THE ENGLISH CONSTITUTION 

tnay be considered to have become an accomplished fact in the 
course of the fourteenth century. 

When Parliament, in its bicameral form, had become a defi- 
nite offshoot of the King's Council, the main lines of develop- 
ment, for the evolution of the twentieth century structure of 
English Central Government, had been established. By the 
end of the fourteenth century, a definite outline of the three 
well-known branches of government had appeared. All of 
these branches continued, of course, to growj and, with respect 
to each, further differentiation took place in the direction of 
the present complicated structures. 

As the various agencies and organs of the English Central 
Government were being evolved by differentiation out of the 
King's Court, development of junction, of course, was going 
on apace. This process, in the course of time, naturally gave 
rise to the question of the interrelationships of the various parts 
of the system and their activities 5 and, in turn, the matter of 
"power inevitably arose. 

As is well known, the English governmental system of today 
remains qionarchical in theory while being highly democratic 
in essence. The system that prevailed in the period following 
the Norman Conquest may properly be called an absolute mon- 
archy. The present system is frequently referred to as limited 
monarchy. At the same time, the monarchy continues in theory 
to be absolute. Clearly, therefore, the theory is the same; and 
limitation has taken place in the realm of fact. In reality, the 
very fact of differentiation of structure inevitably affected the 
practical position of the King. The newer elements of the 
structure caused, both unconsciously and consciously, fixed ways 
of doing things to be established. In this more regularized 
order of things, the King's part became more clearly defined. 
Thus, in practice, the King came to be limited. If, however, 
the King was to remain theoretically absolute, manifestly theory 
and practice had to be reconciled. This is what has actually 
occurred. In mcidern terms, Law became supplemented by 
Convention. The theory, for most part, continues to belong 
to the realm of Law. In Law, the monarchy remains absolute. 
However, the King clearly cannot be absolute in Law and at 



ORIGIN AND DEVELOPMENT OF CONSTITUTION 87 

the same tim^ be limited by Law. Manifestly, limitations had 
to be created in a non-legal realm that may, in a broad sense, 
be called moral. Since what is moral in this sense is based upon 
the concept of reciprocal obligation, there is no wonder that an 
attempt was made to bind the King. In view of the private 
character under feudalism of the various relations that we today 
consider governmental, the contractual, or, in one definite sense 
of the word, conventional aspect of government was stressed. 

At the present time, we think of a typical contract as an agree- 
ment guaranteed by the state. Inasmuch as the state is the 
formal source of law, the private contracts that it guarantees 
are thought of as legally binding; but the state, itself being the 
source of law, is not, when it enters into an agreement, bound 
legally in the same sense of the word. It may by law repudiate 
its Agreement without thereby violating law. At the same time, 
such action may well be reprehensible from the moral point of 
view. If the state should act in this way to such an extent that 
its conduct is intolerable to the people, they, in the absence of 
effective legal redress, can only rebel. Such action on the part 
of the people may be justified only on moral grounds. As a 
matter of fact, this was an exceedingly important and interesting 
aspect of Magna Carta. John was constrained by the barons at 
Runnymede to agree to a large number of undertakings. How- 
ever, John was the state, in the sense that there was no legal 
force beyond him to guarantee the agreement. In the modern 
sense, he could violate Magna Carta without acting illegally 5 
for he was in theory the source of law. The only action open 
to the barons was that of rebellion. This they tacitly recognized 
by writing into Magna Carta a procedure, so to say, for rebel- 
lion. In this way, they justified rebellion, as it were, before 
the fact. 

The principle of contractual agreement, express or tacit, is a 
basic aspect of an evolution whereby a reconciliation was de- 
v^loped between a theoretically absolute monarchy and a 
governmental system democratic in practice. In numerous 
directions, a fixed way of doing things became the recognized 
way of doing things; and though from this way of doing thinga 
departure may in theory take place without violation of law in 



88 THE ENGLISH CONSTITUTION 

the technical sense, departure is not to be anticipated in prac- 
tice. Here, again, the perspective must be that of centuries. 
The development was one of slow and apparently uncertain 
tempo; but, in retrospect, the change is, in its broad outline and 
its principal stages, clear enough. 

The fifteenth century was not only a century marked by the 
development of equity and of chancery jurisdiction. It was 
marked likewise by a premature growth in the strength of Par- 
liament. The existence of relatively weak Kings, together 
with other practical considerations, caused Parliament to assume 
a greatly increased importance. This situation had its part, in 
general and detail, in bringing about ultimately the practical 
supremacy of Parliament. 

The sixteenth century was a century of strong monarchs. 
However, even the formal recognition of a definite place for 
Parliament in the governmental system proved to be of prac- 
tical importance. More particularly, it prevented the outcome 
in England from being the same as that in France, where the 
Estates General disappeared at the beginning of the seventeenth 
century, to reappear only at the time of the French Revolution. 
The English Parliament survived. 

The seventeenth century was in England a period of struggle 
between King and Parliament. Victory finally went to Parlia- 
ment. When William and Mary signed the Bill of Rights, 
the victory of Parliament was in a definite sense recognized. 
Though no change in technical legal theory, it is true, took 
place, the supremacy of Parliament has, practically speaking, 
never since been in real doubt. 

The eighteenth century was characterized by the develop- 
ment of an institution, the Cabinet, and a practice, Cabinet 
Government, 1 that have served to give effect to the fact 
that absolute monarchy in theory and the supremacy of Parlia- 
ment in practice were to prevail side by side. Closely con- 
nected with this development was that of political parties, whose 
origin belongs to the previous century. 2 Finally, the nineteenth 
century and the first part of the twentieth century have seen 

1 Cf. Ch. IX, infra, 

2 V., Ch. V, supra. 



ORIGIN AND DEVELOPMENT OF CONSTITUTION 89 

two important and closely related developments. The suf- 
frage was gradually broadened, until it had become the most 
democratic in the world; x and the House of Commons was 
established as definitely superior to the House of Lords. 2 



1 V., Ch. IV, supra. 

2 V., Ch. XIII, p. 212, infra. 



PART IV 
THE CENTRAL GOVERNMENT 



SECTION I. THE EXECUTIVE 

CHAPTER VIII 
THE FORMAL EXECUTIVE: THE KING 

If the executive branch of the central government in present- 
day England be considered from the point of view of composi- 
tion, it must be thought of literally in terms of hundreds of 
ihousands of agents. This fact represents in a sense the marked 
degree in which, -during the course of centuries, what may be 
:alled the original and residual aspect of the King's Council 
las itself undergone differentiation. In reality, the executive, 
is has been suggested, is at present the most numerous, the most 
:omplex, and the most technical of all the divisions of govern- 
ment. Moreover, there continues to exist a close reciprocal 
elation between structure and function. 

In connection with the executive, the intimate connectioij be- 
tween structure and function has an important effect on 'defi- 
nition. It causes a tendency to exist for each to be defined in 
terms of the other. Thus, executive functions apparently tend 
naturally to be defined as the functions performed by executive 
agents, and executive agents as the agents performing executive 
functions. It is probably much easier to recognize the unsatis- 
factory character of such a circular procedure than it is to find 
a suitable remedy for it. The suggestion presents itself that 
the epithet executive is to be applied to that which is concerned 
with enforcing or applying law; but, in practice, this does not 
altogether cover the case. Exceptions exist that are well estab- 
lished. The "pardoning power" is only one simple illustration. 
As a matter of fact, here as elsewhere, history would appear 
to offer considerable assistance. In this context, executive and 
administrative agents are to be thought of as those in direct line 
of descent from the King's Council. Originally, they were 

93 



94 THE CENTRAL GOVERNMENT 

the agents who remained, after the Courts of Justice and Par- 
liament had become sufficiently established to be left out of 
account. A similar consideration determines executive and ad- 
ministrative functions. Within these limits, agents and functions 
may be conveniently defined and classified. 

Modern conditions suggest in respect of executive functions 
a division, though an unequal division, into two classes. The 
first class consists of those functions that are primarily of a 
formal character, the second of those that, by contrast, may be 
called real. In the first connection, so-called Heads of States 
are principally, though by no means exclusively, involved. Of 
course, the Head of the State may, as in the case of the Presi- 
dent of the United States, combine his formal aspect with even 
more far-reaching real characteristics. However, where, as in 
England or France, the Head of the State displays primarily, 
and even almost entirely, formal aspects, the distinction between 
formal and real is naturally extended from function to agent. 
Thus, in general, the Executive as a whole may be classified as 
Formal Executive and Real Executive. In turn, the category, 
Real Executive, embraces so much that subdivision readily sug- 
gests itseff. In this respect, considerable importance attaches 
toadmjion that is generally made in England and Europe and 
tlSPisbecoming well established in the United States. It in- 
volves a distinction that cannot, perhaps, be made always with 
absolute accuracy but that is none 'the less convenient. It is the 
distinction sometimes expressed in terms of the executive strictly 
sneaking and the ^administration strictly sneaking. In relation 
to functions, it is the distinction between the policy-forming 
executive and the routine executive. The expressions Political 
Executive, on the one hand, and Civil Service, on the other, 
are, of course, likewise employed. In terms of ideal tenure 
terms that will be seen, for the most part, to be realized in 
practice in England executives of the first class are temporary y 
whereas those of the second are permanent. 

The two-fold classification of the Executive and the sub- 
division of the second element of the classification yield three 
classes. They are the Formal Executive, the Policy-forming 
Executive, and the Civil Service. 



THE FORMAL EXECUTIVE: THE KING 95 

The King of England or, in rare instances, the Queen is 
the Head of the State. In a certain sense, the King is more 
than that. His position bears out the famous assertion of the 
Grand Monarch. He is the State. 

The King and his position ought from the beginning to be 
distinguished. The person and the .office are, of course^ not 
the same. The King, in keeping with a tendency that affects 
InTgTSteFor lesser degree every agent or organ of government, 
has become institutionalized and symbolized. The result is the 
existing concept of kingship or monarchy, or, more especially, 
the Crown. Of the distinction between the person who, on the 
one hand, is the King or Queen and the institution that is 
known as the Crown, on the other, Mr. Gladstone once said 
"there jsjQo^distinction more vital." 

The Crown may be thought of sometimes as inclusive, some- 
times as exclusive. "In the inclusive sense, the Crown symbolizes 
the whole structure and process of government. It has refer- 
ence, in the historical sense, to an absolute monarch in respect 
of whom no differentiation has taken place. In terms of au- 
thority, the Crown, in the inclusive sense, is conceived as em- 
bracing all power and all powers of government. It is, in 
general, identical with the State. Xl)n the other hanof^fSl 
connotations of historical differentiation cause the concept of 
the Crown to become more restricted. In this sense, it has 
reference to the structure and process of government in the 
residual sense, that is to say, to government with the judicial 
and the legislative left out of account. The Crown, in this 
exclusive sense, symbolizes the more active parts and practices 
of government, in other words, the Executive. Traditionally, 
of course, the Crown is, in both senses, closely associated with 
the person of the King. In practice, at present, the King in 
person is, for the most part, the principal formal element of the 
State and of the Executive. 

Title of a King or a Queen to the Crown is, as has bqen 
mentioned, determined by Act of Parliament as supplemented 
by the Common Law. Any or all of the provisions involved 
may, of course, theoretically be altered by Parliament, or, 
strictly speaking, by the King-in-Parliament. This is sometimes 



96 THE CENTRAL GOVERNMENT 

said to mean that, since a binding convention requires the King 
to give his formal assent to any decision of Parliament, the King 
might be compelled to sign his own death warrant. The im- 
portant Statute of Westminster of I93I, 1 it may be noted, which 
incorporated into its provisions a number of conclusions arrived 
at by representatives of certain members of the Empire, states 
in its preamble that "it would be in accord with the established 
constitutional position of all the Members of the Common- 
wealth in relation to one another that any alteration in the law 
touching the Succession to the Throne or the Royal Style and 
Titles shall hereafter require the assent as well of the Parlia- 
ments of all the Dominions as of the Parliament of the United 
Kingdom." 

At the present time, the basic Act in the matter of title to the 
Crown is the Act of Settlement of 1701. This Act, it may be 
seen, was passed in the reign of William III, after the death 
of his wife, Queen Mary. It anticipated that neither William 
nor his cousin and sister-in-law, who became Queen Anne, might 
have children. It accordingly stipulated that, in the event of 
"such default of issue," "the crown and regal government . . . , 
with the royal state and dignity . . . and all honours, styles, 
titlifes, royalties, prerogatives, powers, jurisdictions and authori- 
ties to the same belonging and appertaining, shall be, remain 
and continue to the . . . most excellent princess Sophia and the 
heirs of her body, being Protestants . . ." Thus, the effect of 
the Act of Settlement was to determine the family in which 
title to the Crown shall remain until such time as another Act 
of Parliament might conceivably alter this section. The ques- 
tion as to which member of the royal family shall be King or 
Queen clearly depends on the meaning of the word "heirs" in 
the Act of Settlement. This is, in general, determined by the 
tales of primogeniture at Common Law. The basic rules are 
sometimes said to be that an elder line is preferred to a younger 
an^ that, in the same line, a male is preferred to a female. An 
application of these rules determines the situation at a given 
time. At present, for example, George VI being King, both of 
his children, pbo are girls, possess superior claims to their uncles 

1 V., Ch* XI V, p. 224, infra. 



THE FORMAL EXECUTIVE: THE KING 97 

or their aunt, on the principle that an older line is preferred 
to a younger. The two brothers of the King, the Duke of 
[Gloucester and the Duke of Kent, take priority over their sister, 
Mary, though they are younger than she. This is on the prin- 
ciple that a male is preferred to a female. On the same prin- 
ciple, the succession of the King's daughters is, of course, only 
presumptive j for a first son to the King would become the heir 
apparent. Such a son would, incidentally, be made Prince of 
Wales. 

There is an old maxim that "the^JCing^&e^ This 

means merely that the King is instantaneously replaced by his 
successor. The technical expression employed, when there 
occurs what Blackstone calls "disunion^, of the King's natural 
'body from his body politic," is demise. This event used, on 
occasion in ,the past, to cause important results, such as dissolu- 
tion of Parliament and the vacating of all offices held under 
the Crown; but, in more recent times, Acts of Parliament have 
rendered these events independent of the demise of the 
Sovereign. 

Several Kings have, under various kinds of pressure, abdi- 
cated. The historical examples that have been often cited are 
those of Edward II (1307-1327), Richard II (1377-1399), and 
Jam.es II (1685-1688). To these has been added in recent 
times the abdication of Edward VIII (1936). There has, of 
course, been no lack of discussion and of disagreement concern- 
ing the constitutional significance of this event; but, if consensus 
is ever to be realized, it will be apparently only with the passing 
of time. 

Numerous formalities, full of historical interest, follow, in 
the x course of time, the accession of a new King or Queen. 
Amongst other things, mention may be made of the oath taken 
at the time of the Coronation. The character of this oath is to 
be explained through reference to former religious controversy 
in England. The terms of the oath were formerly such as to 
be exceedingly offensive to Roman Catholics; but an Act of 
Parliament in 1910 rendered these terms considerably milder. 
The oath taken by the father of the present King was in part 



98 THE CENTRAL GOVERNMENT 

s follows: a "I do solemnly and sincerely in the presence of 
5od profess, testify and declare that I am a faithful Protestant, 
nd that I will, according to the true interest of the enactments 
which secure the Protestant succession to the Throne of my 
Realm, uphold and maintain the said enactments to the best of 
niy power according to law." 

The necessity for the King or Queen to take an oath at Coro- 
nation promising to be "a faithful Protestant" is based on tlje 
Act of Settlement of VJQL. The Act, which itself requires that 
an oath be taken, in effect sets up religious qualifications for a 
monarch. The principal provisions are as follows: "... All 
and every person and persons who shall or may take or inherit 
the said crown . . . and is, are or shall be reconciled to or shall 
hold communion with the See or Church of Rome, or shall pro- 
fess the popish religion, or shall marry a papist, shall be subject 
to such incapacities as ... provided, enacted and established . . . 
Whoever shall hereafter come to the possession of this crown 
shall join in communion with the Church of England as by law* 
established." 

If a King or Queen through illness, infancy, absence from 
the kingdom, or other cause should be unable to perform the 
duties of office, a Regency would be set up in accordance with 
terms of existing law. In the past, cases have been dealt with 
as they have come up. At present, an Act of Parliament passed 
in 1937 regulates the matter. If occasion should arise, the next 
adult heir would serve as Regent. 2 The present Act does not 
apply to the self-governing Dominions, unless, in accordance 
with the Statute of Westminster, they themselves desire to 
adopt it. 

The cost of monarchy in Great Britain has in the past caused 
spdraHic support for republicanism. However, at present, little 

^For the coronation of George VI in 1937, verbal alterations were 
introduced into one part of the oath, with a view to recognizing the 
present position of the self-governing Dominions under the Statute of 
Westminster. 

2 A different provision five Councillors of State would be made if 
illness or absence from the country on the part of King or Regent should 
delay public business. 



THE FORMAL EXECUTIVE: THE KING 99 

complaint, apparently, is made on this score. In practice, what 
is known as the Civil List is granted by Act of Parliament to the 
King for the duration of his reign and for a period of six 
months afterwards. The annual amount is at 



of jjQQQQjs for the King's 
addition to this, the King receives as part of his personal income 
a certain amount of the revenues from the Duchy of Lancaster. 1 
In general, the Civil List may be thought of as the modern 
counterpart of the historical income from Crown lands and other 
hereditary Crown resources. Though formerly the Civil List 
included funds for the payment of certain public officers, it is 
at present confined to expenses of the King and the Royal 
Household. 

The wide difference between the theory and fact of the Eng- 
lish Constitution, as it affects the connection of the Monarch 
with the actual functions of government, has been variously 
expressed. Thus, for example, the King, is sometimes said to 
be a "figurehead." Though' there are certain respects in which 
this unqualified statement of things may be misleading, what it 
is intended to express is, in general, clear enough. The various 
decisions taken in earlier days by the King and the various 
activities performed by him in governmental concerns are now 
taken and performed by responsible ministers. Whatever the 
King's influence may be, the actual decision is that of a minister. 
The King is commonly said to act on the advice of a minister; 
and yet, if a distinction is to be made between decision and action, 
on the one hand, and advice, on the other, the actual practice 
is more nearly the reverse. The King may and does advise j 
but the minister decides* 

In connection with the English King, the difference between 
theory and practice may, likewise, be described in such a way 
as to give rise to an objection, sometimes encountered, that 
nothing could be more absurd than for a long account of what 
the King can do to be followed immediately by a statement that 

1 The considerable revenues from the Duchy of Cornwall go to* the 
Prince of Wales. Some members of the royal family are said to possess 
large personal fortunes. 



IOO THE CENTRAL GOVERNMENT 

he may not do any of it. However that may be, some allowance 
must always be made for the difference between theory and 
practice j and this is certainly not less true where the difference 
is very wide. Even in a more practical case like that, for ex- 
ample, of a minister, a distinction between theory and practice 
is naturally made. What any agent of government does may 
manifestly be viewed either actually or potentially. Hence, 
there arises the simple distinction between a governmental func- 
tion and the authority or power by virtue of which it is per- 
formed. In the case of the King, the distinction between power 
and function may, because of the peculiarly wide difference be- 
tween theory and practice, be conveniently expressed primarily 
in terms of power. According to concepts that are in a similar 
connection frequently employed in France, the King possesses 
ut he. does not. exercise 



Although, in undifferentiated terms, the King possesses all 
power, he may be thought of principally as possessing all 
executive powers. And yet to say that the King possesses, 
though he does not exercise, all powers commonly regarded as 
executive^ is, though true, only part of the whole truth. It is 
at leaft equally true that the powers primarily thought of as 
possessed by the King are those that have come to be looked 
upon as executive in character. Thus, in the study of the 
Executive, as elsewhere, analysis and historical evidence are 
mutually supplementary. 

The powers possessed by the King are commonly said to be 
derived from t\p sources. What Dicey calls a "the residue of 
discretionary or arbitrary authority which at any given tifne is 
leggHtleft in the hands of the Crown" is known as the Pre- 
rogative. This is a first source of theoretical royal power. The 
provisions of law involved are good examples of Common Law 
rules that form part of the Law of the Constitution. Also, the 
Conventions of the Constitution in general, it may be noticed 
incidentally, are, according to Dicey's analysis, almost all rules 
for determining the exercise of authority that is possessed by 
virtue of the Prerogative. The second source of theoretical 
royal power is to be found, of coursfc, in Acts of Parliament, 

iOf.cit.,?. 419. 



THE FORMAL EXECUTIVE: THE KING JOI 

Whenever, in modern times, there is occasion to determine 
legally the employment of some new executive power, the 
power of the King is, in general, added to by statute. 

Some of the powers possessed by the Kings are closely related 
to the functions performed by those parts of the structure of 
government that by differentiation have become distinct 
branches of governmental organization. This means, oFcourse, 
that some of the powers commonly regarded as executive are 
connected with the judiciary or the legislature. The possession 
of such powers by the Executive is most easily understood or, 
indeed, is perhaps only to be understood as a survival from a 
time when all powers of government were the possession of an 
undifferentiated governmental organ. At the present time, a 
simple analysis of executive powers will distinguish those that 
are less closely and those that are more closely connected with 
the typical activities of the other branches of government. The 
result is a classification of Executive Powers into (i ^Executive 
Powers, Strictly Speaking, (ii) Judicial Powers of the Execu- 
tive, and (iii) Legislative Powers of the Executive. The King 
possesses powers of all these kinds, though, it may be repeated, 
he himself does not exercise them. 

The typical executive function is generally considered to be 
law-enforcement.^ In this matter, experience and reaspn, his- 
tory^iii^ combine to suggest that two great forces, the 

physical and the spiritual, lie behind the familiar but peculiar 
phenomenon of compliance with law.. Historically, of course, 
the King, in directing the enforcement of law, held or gathered 
in hi$ hands the direction of both these forces. Jtje^^emainsn 
hisMrealm head of t trm( 



The King is <gm]^^ 
the air-fprce of the country % This position represents, of course, 
arf early "historical situation. When the Duke of Normandy 
became the Conqueror of England, his military leadership 
secured for him the kingship. This possibility, in turn, was 
based on the fact that kingship had already existed in England 
for centuries, its establishment being a phenomenon attendant 
on the enhanced position of Teutonic chieftains in the new land 
to which they had migrated. At the present time, the King of 



102 THE CENTRAL GOVERNMENT 

JEngland ? it goes without saying, never assumes active command 
of any part of^the armed fbrces^oFTBe country. Even in a 
coiM^TiK iEKe^TJm^^ the President is a real 

and not merely a formal executive, his position as commander- 
in-chief involves, of course^np active command. The President 
and certain heads ordFpartmen7s7tFroughTwKom the President 
frequently acts, merely direct the policy according to which the 
armed forces act. The same function in England is performed, 
in the name of the King, by responsible ministers. 

The King has been since the time of Henry VIII (1509- 
1547) Governor of the Church of England. He is also head 
of the Church of Scotland. This involves, aside from the 
lormat aspect of things, the 'possession of certain powers by the 
King; but, here again, the^exercise of these powers is the func- 
tion of responsible ministers. In practice, for example, in con- 
nection with the Church of England, the appointment of Arch- 
bishppvof _Bishops, and of certain other ecclesiastics is the re- 
sponsibility of the Prime Minister; whereas other executive 
functions in connection with the Church are performed by the 
Home Secretary. 

r One of 'the most far-reaching functions of an exeeutive char- 
acter, in the strict sense of the term, is tha^ ft^appointmenjt: and 
rgmoyal. As is not difficult to imagine, the King's connection 
with appointment must have been involved in the very earliest 
tendency towards differentiation. The mere impossibility from 
the beginning for the King to do everything for himself requires 
the assumption that helpers must have been appointed. At the 
present time, such helpers in the business of governing afre to 
be numbered literally in the hundreds of thousands. They 
range from Prim^ Minister to messenger boy. They likewise 
include many judges and other high officials who are not, for 
the most part, executives themselves. In theory, all are ap- 
pointed by the King or by persons themselves appointed in 
theory by the King. In reality, with the possible exception of 
the case where the political situation does not indicate clearly 
who thf Prime Minister must be, the King has no real part in 
appointment. In the case of power 'of removal, which is the 
obverse of that of appointment, the exclusion of the King from 



THE Fui^mAL EXECUTIVE: THE KING IO3 

active participation is, if anything, more nearly absolute. How- 
ever that may be, the practical problem of appointment and 
removal on so large a scale is manifestly one of far-reaching im- 
portance for the Real Executive. The solution involves, on 
the one hand, choice by the Prime Minister of a comparatively 
small number of political executive agents, who form the apex 
of the large executive organization, and it involves, in the 
second place, an arrangement whereby the thousands, of rou- 
tine executive agents, the Civil Service, are chosen, promoted, 
and dismissed. 1 

A final power usually regarded as executive in the strict sense 
of the term is that of direction of foreign policy. In England, 
the King, as Head of the State, carries on the relations that 
England has with other countries. He sends and receives am- 
bassadors or other diplomatic agents ; he makes treaties; and he 
does the various other things commonly included in the cate- 
gory of foreign relations. Here again, however, the real, as 
distinguished from the theoretical, authority is thatTof respon- 
sible ministers. Foreign relations, it is true, involve much for- 
mality; and the King has definite duties of a formal kind to 
perform. At the same time, the real situation is illustrated by 
a thing like the reception of foreign diplomatic agents, where 
even the formal ceremony must be attended by a minister. This 
is not to say that the dividing line between the formal and the 
real can be drawn with precision in this matter. The sphere of 
foreign relations is one in which usual accounts commonly at- 
tribute to the King and other members of the Royal Family 
the possibility of real accomplishment. Such an account cites 
from recent history examples like the connection of the late 
fEdward VII with the late entente cordiale. However, though 
there is little doubt but that the King may exert marked in- 
fluence in this sphere, there exists, even if in lesser degree, the 
same possibility with respect to internal affairs. The fact re- 
mains that, in respect of both, the King cannot in any real sense 
formulate and carry out his own policy. 

The King is the Fountain of Justice. Justice is administered 
in 'the King's name. The~varTous courts are the King's Courts. 

1 V., Chs. IX and X, infra. 



IO4 THE CENTRAL GOVERNMENT 



This and various other aspects of the same matter reflect the 
fact that justice was once administered by the King in his un- 
differentiated Court. At present, of course, the principle of the 
a jl^^^nde^e_o^tlie |udiciarY" prevails in England. The 
juoge^re, ror^fl practical purposes, freed from control at the 
hands of the Executive. This is not less true because the King's 
power of appointment extends to the judges of all kinds, a 
power that, in this case as in others, is, of course, exercised by 
responsible ministers. 1 Perhaps the best example of a judicial 
power of the Executive is that pf pardon. This is, in England, 
the King's Prerogative; and it fias clearly survived as a residual 
power that remained after differentiation of the King's Court. 
The power, which is of somewhat less practical importance 
since the institution in 1908 of a satisfactory judicial review of 
criminal court judgments, is, in reality, exercised by the Home 
Secretary.. A somewhat similar example of the King's judicial 
power is that by virtue of which appeals in certain instances are 
taken to tHe Privy Council. 2 ^ 

The King possesses a not insignificant number of powers in 



connection ^vith legislation. These may be considered egatve 
Power^oftheExecujt^e. Here, again, theory and pracficTare 
noTcioselymentical. The possession and the exercise of power 
must be distinguished, because the Law of the ^Constitution is 
supplemented by its Conventions. The exercise of these powers 
involves, on the part of the King, the personal performance of 
some duties of a formal kind and, on the part of responsible 
ministers, the makin'g of all real decisions. 

The King theoretically brings a new Parliament into existence 
by arranging for elections of the House of Commons ; 8 and he 
brings a Parliament to an end by dissolving it. He alone, in 
theory, determines the number and duration of sessions of Par- 
liament through power to summon and to prorogue Par- 
liament. On the other hand, his real activity is confined to 
such things as issuing formal proclamations and .appearing fre- 

1 Cf.Ch. XV, p. 235, infra. 
2 V., ibid., pp. 231-232. 

8 Cf., for this and the other matters mentioned here, Chs. XI and 
XII, infra. 



THE FORMAL EXECUTIVE: THE KING 105 

quently in person at ceremonies connected with the functions 
involved. The decisions are those of his ministers. Again', the 
King is empowered to make recommendations to Parliament, 
and he often personally performs the formal task of reading 
lis Speech from the Throne; but the Speech is written by the 
Prime Minister. The King's assent is in a technical legal sense 
necessary to the validity of all Acts of Parliament; and yet, since 
every Act is, in the course of passage, actually or in effect ap- 
proved by responsible ministers, a binding convention deter- 
mines that the King has at the end no discretion. 

According to the technical legal view, statutory enactments are 
made by the King in Parliament. This, of course, means merely 
that Parliament makes law. Moreover, in legal theory, the 
King in Parliament not only may, but frequently does, make 
laws authorizing various agents or agencies of government, 
including the King himself in another capacity, namely, the 
King-in-Council, to issue regulations having the force of law. 
* Where such authority is acted upon, the activity involved is 
"subordinate" or "non-sovereign" legislation. The increasing 
volume of this type of legislation is in England, as elsewhere, 
an exceedingly important modern governmental development. 1 
So far as the King is concerned, his possession of power in this 
respect is simply an example of the increase of royal power by 
statute. Indeed, aside from certain cases in connection with 
British possessions that are without self-government, the King- 
in-Council possesses no law-making power except that derived 
from statutory delegation. This means that in practice the 
actual rules are made by responsible ministers; and, since Par- 
liament may and does delegate similar authority to individual 
ministers and ministries, its object in delegating subordinate 
law-making authority to the King-in-Council is that of granting 
real authority to the P^yFormir^^ as such. 

^ ~~~ 



--wr 

The almost wholly formal position of the King in the English 
system of government, the fact that Convention prevents him 
from exercising the power that he possesses, might not un- 
naturally raise the question^ why the English kingship should 

1 V., Ch. XV, p. 249, infra? 



IO6 THE CENTRAL GOVERNMENT 

not be abolished .\ In one form, the answer is very simple. The 
great mass of the British people are not willing to see king- 
ship disappear. About this fact there can be little doubt. A 
republican movement gathered some momentum in the iSyo'sj 
but it soon subsided. Doubtless a certain number of subjects 
would at the present day prefer in principle that Great Britain 
were a republic. A few, even in Parliament, have asserted this 
preference, since the abdication of Edward VIII. At the same 
time, republicanism versus monarchy seems in no real sense 
to be an issue. Kingship continues to receive the support of 
the mass of the King's subjects, owing to somewhat complex 
considerations of history, of human motives and sentiment, and 
nf utility. 

Kingship and Kings serve the great purpose of symbolizing 
unitj^ This is true both of the British Empire and the United 
Kingdom. Whether in the case of the self-governing parts of 
the British Commonwealth of Nations, where strength of senti- 
ment must, in order for any tie to remain, offset virtual govern- 
mental independence, or, at the other extreme, in the case of 
more backward subjects in all climes, differing in multitudinous 
ways, King and Crown bind them, figuratively and even liter- 
ally, to the Mother Country. In Great Britain, the King is 
rightly thought of as representing a unity that transcends the 
bias of political parties and other centrifugal forces that exist 
in the life of every nation. Associated with the King are a long 
tradition and memories of many glories of history. King and 
Crown serve something of the same kind of purpose and repre- 
sent somewhat the same things as the nationaljlag in a country 
like the United States. 

From the political point of view, a person who stands above 
parties and partisan considerations has, in practice, proved to 
be a very desirable adjunct of the parliamentary system of 
government. Parliamentary government can theoretically work, 
perhaps, without such a formal head. It can very doubtfully 
work as well. Consequently, if parliamentary government is to 
be retained in the classic form in which it has been developed 
in England, th$ argument is altogether plausible which suggests 
that abolition of the King would involve substitution of a simi- 



THE FORMAL EXECUTIVE: THE KING IO7 

/ 

lar personage, who could scarcely be expected to represent an 
improvement. 

The King, together with the Royal Family, stands at the 
head of British_society. The resulting influence is incalculable. 
In matters ranging from dress to moral co&cepts, a pattern is 
set that a populace, admiring or apish according to the point 
of view, accepts as a guide. Interest on the part of the Royal 
Family in any cause is enough to ensure for it a body of sup- 
porters. However opinion may differ as to whether or not the 
appeal in such things is to snobbishness, there can be no doubt 
but that the situation represents a genuine^ element j)f strength 
fc^monarchy. 

vVhatever may be the attractions of kingship, whatever the 
importance of history and sentiment, democracy will irievitably 
raise the question whether the advantages are had at too great 
cost. Ceremony, pomp, and ritual involve, from the nature of 
the case, a certain appearance of lavishness; so that, while many 
are lost in admiration, others, of a different temperament, con- 
trast the display with their knowledge of poverty and distress. 
^ However, to raise the question is not necessarily to resolve it 
against kingship. In England, on the contrary, no grounds for 
wide-spread resentment appeaj- to exist. After all, economy is 
in one aspect relative to the object aimed at. Little suggestion 
is made in England that the people fail to get "their money's 
worth." Royal finances, apparently, are managed efficiently and 
economically. The money spent appears not to be expended 
extravagantly ; and the -sum of royal expenditures is known to 
be only a small fraction of one per cent of the total public 
outlay. 

A conclusion with respect to the English King should not 
lose sight of one fact. Although the concept of a wide differ- 
ence between theory and practice establishes the outline, so to 
say, of the King's actual position, the possession of power and 
the exercise of power are not, within that outline, wholly sep- 
arate nor always far apart. The King is constantly kept in- 
formed of what is going on. He is thus in a position to 
acquire a knowledge and understanding, not only of foreign 
but likewise of internal affairs, which would represent an un- 



IO8 THE CENTRAL GOVERNMENT 

used asset if they had no influence on the actual exercising of 
governmental power. So long as the responsibility of the min- 
isters is not materially impaired, the King is free to play a part 
of no small importance in public affairs. The words of Walter 
Bagehot in this connection continue to be a striking account of 
the King's position. "To state the matter shortly," he says, "the 
sovereign has, under a constitutional monarchy such as ours, 
three rights the right to be consulted, the right to encourage, 
the right to warn. And a king of great sense and sagacity would,, 
want no others." 



CHAPTER IX 

THE REAL EXECUTIVE 

i. POLICY FORMING: MINISTRY, CABINET, AND PRIVY COUNCIL 

The responsible ministers in England, who compose th 
Policy Forming Executive, may be regarded as having both ai 
individual and a collective existence. Taken together, they 
form what is commonly called the Ministry. The more im- 
portant of the ministers make up the Cabinet. 

The Ministry and Cabinet are alike in being extra-legal 
bodies. The Cabinet differs from the Ministry in that its mem- 
bers meet together, consult, and make decisions. However, as 
the Cabinet has no real legal existence, its actions as such have 
not the force oHaw. Where it is desirable that the collective 
decisions of the Cabinet possess legal effect, the decisions are 
formally made the action of the Privy Council, which, of course, 
has an existence in law. As a matter of fact, all members of 
the^3abinet are members of the Privy Council. 

The relationships of Ministry, Cabinet, and Privy Council 
are in appearance somewhat complicated. In practice, these 
relationships give rise to little, if any, difficulty. The whole 
situation is to be explained largely in terms of history. 

There are, roughly speaking, about seventy-five ministers. 
Together they perform no function, unless it be to come into 
and go out of office as a body. This they normally do. Since 
they are policy-forming or political agents of government, their 
tenure, as is required by democratic theory, depends in general 
on public opinion. Aside from this consideration, the Ministry 
is merely a conveoient concept that embraces all the ministers 
collectively. On the other hand, though the ministers in this 
corporate aspect perform no real functions and have no legal 
being, each of them separately has a definite existence in law. 
His position is established by law, and his powers and duties, 
though convention likewise plays its part, are defined by law. 

109 



110 THE CENTRAL GOVERNMENT 

The ministers vary in nomenclature and in importance. Only 

i few of them are designated by the title of Minister. These 

nvolve positions, like those of the Minister of Health, the 

Minister of Pensions, and the Minister of Transport, that have 

jeen established in relatively recent times. Other ministers are 

called by such varying titles as Chancellor of the Exchequer, 

Secretary of State for Home Affairs, President of the Board of 

Trade, and Post-Master General. Some of the most important 

ministers are heads of organized Executive Departments. Other 

ministers are political assistants in these several Departments. 

A few hold positions connected with the Royal Household or 

posts of a similar character. All owe their positions to the fact 

that they are leaders of a political party. 

The principle of executive unity is introduced into the body 
of English ministers through the existence of the Prime Min- 
ister. This position, in its modern form, arose naturally. It 
arose, so to speak, by force of circumstances, as soon as the King 
ceased in actuality to furnish the desirable element of unity. 
In point of fact, this occurred in the first half of the eighteenth 
century, GorgeJ^(i7i4-i727), as is well known, was unable 
to understanoEnglish and was little interested in English poli- 
tics. As a result, he ceased to attend meetings of the ministers. 
Thereupon, the ministers, by what was apparently a sort of 
spontaneous agreement, looked to SgJRptyrt Walpole for direc- 
tion. He furnished a genuine leadership } and, although, from 
a legal point of view, he performed merely the duties of the 
office he held, he in actuality stood to those who filled the other 
offices in a relationship that gained for him the designation of 
first or 'prime minister. Walpole strenuously repudiated the 
suggestion that his position was of this kind, but his contention 
tHat no such office existed failed to recognize the extent to 
which convention could modify, without formally changing, 
provisions of law. Even at the present day, the position of 
Prime Minister is in no real sense regulated by law. Except 
for one or two passing references, as it were, made to the office 
in relatively recent statutes, the Prime Minister would have no 
legal existence, tie none the less "rules England." 

The Prime Minister is m essence a man who can command 



THE REAL EXECUTIVE III 

a majority in the House of Commons. This means, in other 
words, that he is the leader of those who will act as a majority 
in the House of Commons. This, in turn, means normally 
that he is the leader of a party that has secured a majority of 
the seats in the House of Commons. Usually, his position of 
headship in his party is everywhere recognized. However, even 
so, a man may, on occasion, be definitely accepted by a formal 
vote as leader of a party. Thus, there is almost never any 
doubt as to the identity of the logically Accessary Prime Min- 
ister. Consequently, although the Prime Minister is in theory 
chosen by the King, only rarely does any discretion exist, and 
then very little. 

If all ministerial positions be imagined as for the moment 
vacant, then the formation of a ministry, as the expression fre- 
quently is, may be easily conceived. The King is, in theory, 
faced with the problem of filling some seventy-five positions. 
He summons the leader of the majority in the House of Com- 
mons and requests his advice and assistance. This means 
normally that the man so summoned is to be Prime Minister. 
He later furnishes the King with a list of ministers, including 
himself, whom he "advises" the King to appoint. This the 
King duly does. The man who has furnished the Ifst is prob- 
ably, though not necessarily, appointed, on his own advice, 
First Lord of the Treasury. The simple explanation of this 
is, of course, that the position of First Lord of the Treasury 
is a ministerial post with no important duties, which, accordingly, 
leaves the incumbent free to give his complete time to the 
arduous tasks of the premiership. Experience has shown that, 
in general, the position of Prime Minister, in combination with 
an exacting ministerial post such, for example, as that of Secre- 
tary of State for Foreign Affairs, is too great a burden for the 
strongest man. Thus, the Prime Minister is a minister tor 
example, he receives a salary l by virtue of the fact that he 

1 Legislation introduced into Parliament in 1937 stipulated that the 
salaries of Cabinet Ministers should be uniformly 5,000 and that the 
Prime Minister should receive a salary of 10,000 with a pension, upon 
retirement, of 2,000. V., for the salary and pension of the Lord Chan- 
'^" > infra. 



112 THE CENTRAL GOVERNMENT 

holds a position established and regulated by law 5 he is Prime 
Minister by virtue of a priority inherent in the nature of things 
and recognized by convention. 

If the King, in choosing the Prime Minister, is normally with- 
out any real discretion, the Prime Minister, though he is pos- 
sessed of infinitely greater authority in choosing the ' ministers, . 
is, in a somewhat analogous way, actually limited to some extent 
in his freedom of choice. After all, the majority has other, albeit 
lesser, leaders than the Prime Minister. Their claims must in 
some degree be recognized. For example, a party leader who 
has previously been a minister is commonly regarded as having 
a special claim. Where conflicting claims exist, they must be 
in some way reconciled. Indeed, the Prime Minister must ob- 
serve numerous rules of the game, so to speak, in distributing 
positions that are, after all, political. By an exceedingly strong 
convention, the ministers must in practically all cases be mem- 
bers of Parliament. The Chancellor of the Exchequer is always 
a member of the tjouse of Commons, and the Lord Chancellor 
practically always, though not necessarily, a member of the 
House o Lords. Statute law limits the number of Secretaries 
and Under-Secretaries of State who may sit in the House of 
Commons at one time; and, in general, regard must be had for 
a distribution of ministers between the two Houses in such 
a way that the interests of the Executive shall not suffer in 
either place. Finally, teamwork amongst the principal ministers 
is especially important. This means that the Prime Minister 
should exercise great care in determining the membership of the 
Cabinet. 

The Cabinet as such, aside from one or two casual references 
to it in recent statutes, has no existence in law.. It consists of 
a certain number of the principal ministers. , This number is 
at present about twenty, or, roughly speaking, in the neighbour- 
hood of one-third the ministers other than those of the Royal 
Household and the like. The composition of the Cabinet is, 
in general, determined by the Prime Minister. However, the 
Prime Minister is not, in practice, entirely free in the matter. 
A rigidly accurate definition of the Cabinet, it is true, must 
recognize that the sole criterion of membership in that body is, 



THE REAL EXECUTIVE 113 

strictly speaking, whether or not a given minister is ii ed by 
the Prime Minister to attend meetings in which m TS of 
policy are collectively considered. At the same time, it is not 
to be conceived that the Prime Minister first chooses the com- 
plete body of ministers and then decides which of them he will 
summon to Cabinet meetings. He really solves both problems 
simultaneously. The holders of certain ministerial posts are in- 
variably included in the Cabinet ; so that the Prime Minister 
is perfectly aware that, when he chooses certain ministers, he is, 
in a definite sense, choosing Cabinet ministers as well. On the 
other hand, experience shows that certain ministers are some- 
times in the Cabinet and sometimes not. The determination 
is, of course, that of the Prime Minister. Presumably, his de- 
cision in a given case is based on the various aspects of his 
problem and of his contemplated solution, taken as a whole. 

The Cabinet ministers are in a majority of cases heads of 
Executive Departments. On the other hand, ministers without 
portfolio are on relatively rare occasions included in the Cab- 
inet. For example, instances of this were to be observed during 
the World War. On the other hand, there are practically 
always at least two 6r three ministers who, because their posi- 
tions involve very few duties, are free to devote themselves to 
work of the Cabinet as such. . Their tasks include special activi- 
ties like those connected with the League of Nations, or like 
those involved in a recent effort to coordinate the attacks of 
several Departments on the problem of unemployment. 

The Cabinet of Mr. Chamberlain, formed in May, 1937, con- 
tained the following ministers: 

Prime Minister and First Lord of the Treasury 

Lord President of the Council 

Lord High Chancellor 

Lord Privy Seal 

Chancellor of the Exchequer 

Secretaries of State for 

(1) Home Affairs 

(2) Foreign Affairs 
Colonies 



114 THE CENTRAL GOVERNMENT 

(4) Dominions 

(5) War 

(6) India 

(7) Scotland 

(8) Air 

First Lord of the Admiralty 

President of the Board of Trade 

Minister of Health 

President of the Board of Education 

Minister of Agriculture and Fisheries 

Minister of Labour 

Minister for the Coordination of Defence 

Minister of Transport ( 

The Ministry formed by Mr. Chamberlain, included the fol- 
lowing ministers who were not members of the Cabinet: 

First Commissioner of Works 

Minister of Pensions 

Post-Master General 

Chancellqr of the Duchy of Lancaster 

Attorney-general 

Solicitor-General 

Paymaster-General 

Civil Lord of the Admiralty 

Financial Secretary of the Treasury 

Five Junior Lords of the Treasury 

Under-Secretaries of State for 

(1) Home Affairs 

(2) Foreign Affairs 

(3) Colonies 

(4) Dominions % 

(5) War (and a Financial Secretary) 

(6) India 

(7) Scotland 

(8) Air 
Parliamentary Secretaries of 

(1) the Admiralty 

(2) Trade 

(3) Mines 



THE REAL EXECUTIVE 115 

(4) Overseas Trade 

(5) Agriculture (also Deputy Minister of Fisheries) 

(6) Transport 

(7) Labour 

(8) Pensions 

(9) Education 
(10) Health 

Assistant Post-Master General 
Charity Commissioner 
Church Commissioner 
For Scotland 

(1) Lord Advocate 

(2) Solicitor-General 

Examples of members of the Ministry who are connected 
with the Royal Household are the Treasurer, the Comptroller, 
and the Vice-Chamberlain. 

The ivyCouncil is a large body of some three hundred 
membersTltlspunlike the Ministry and for the greater part 
unlike the Cabinet, a collective agency known to the law. It 
is a direct descendant of the Curia Regis. Its members are 
in theory chosen by the King. This means, of course, that they 
are the choice of the Ministry in power. According to conven- 
tion, all Cabinet ministers are made members of the Privy 
Council.^ This does not include the ministers who are not of 
Cabinet rank. A few of them are usually Privy Councillors, 
having become so on other grounds. Since life tenure prevails 
in the Privy Council, several former Cabinet members are al- 
ways found in its membership. Other members include high 
ecclesiastical and judicial officials, together with persons hon- 
oured with membership for literary and scientific, as well as for 
political, reasons. All members have the title Right Honour- 
able, which is prefixed to their names. The full membership 
meets only on certain ceremonial occasions. A quorum consists 
of three members. The Council as such performs certain formal 
functions l required by law, the decision, of course, being that 

1 For this-reason, the Privy Council might logically have been discussed 
in the previous chapter. However, it seemed well to consider it in con- 
nection with the Miniatrv and Cabinet. 



Il6 THE CENTRAL GOVERNMENT 

of responsible ministers. It performs some functions of con- 
siderable importance through committees, especially through its 
Judicial Committee. 1 

The several existing Executive Departments in England, 
with their political heads of varying name and composition and 
with their thousands of routine employees, are easily to be con- 
ceived as having been evolved, in the course of centuries, 
through differentiation of an early simple Council of the King; 
The simple notion of the King as commander of his armed 
forces and the possessor, in common with the smallest organiza- 
tion anywhere, of a treasurer and a secretary will furnish the 
basis for the development of most of the older and a few of the 
newer Departments. The King's secretary is apparently first 
heard of in the reign of Henry III (1216-1272). In the time 
of Elizabeth (1588-1603), he became so important as to be 
Secretary of State. This position, even in its earlier history, 
frequently had two .holders; and the eighteenth century saw 
the beginning of additions, which have, for the present, ended 
with the establishment ^n 1926 of the Secretary of State for 
Scotland in place of the former Secretary for Scotland. In 
legal theory, the eight Secretaries that exist at present hold the 
same office ^and the duties of one can theoretically be performed 
by the others, except where an Act of Parliament may impose 
duties on a specific Secretary. In practice, the Secretaries pre- 
side over Departments that are concerned with the performance 
of several primary governmental functions. These functions 
include the conduct of relations with other countries, the pres- 
ervation of internal order at home and in the Empire, and the 
maintenance of the "defence services" other than the typical 
British agency of tradition, the Admiralty. 

The Admiralty, with which may be associated the Depart- 
ment that in various definite respects takes precedence over all 
the others, namely, the Treasury, represents a development of 
considerable importance and interest. This is the process con- 
nected with what are known as offices pit into commission. The 
office of Lord High Admiral dates from the fourteenth cen- 

1 V., Ch. XV, p. 231, injra. 



THE REAL EXECUTIVE 



tury. The Treasurer, who was kn early officer of the Ex- 
chequer, was dignified with the title of Lord High Treasurer 
in the time of the Tudors. Each of these important offices 
was permanently put into commission, that is to say, supplanted 
by a board of commissioners, in the first quarter of the eigh- 
teenth century, though their duties had temporarily been per- 
formed by commissioners on previous occasions. At present, 
the Admiralty Board is composed of the First Lord of the 
Admiralty, the four Sea Lords, the Civil Lord, and parlia- 
mentary and financial secretaries. It meets once a week. The 
First I,ord, who is practically always a civilian, is, in theory, 
on the same plane as the other Lords ; but he is, in practice, 
a member of the Cabinet and is directly responsible for the con- 
duct of naval affairs. The Treasury Board is at present made 
up of the First Lord of the Treasury, who is usually the Prime 
Minister; of the Chancellor of the Exchequer, who is the real 
finance minister of the country and always a member of the 
House of Commons; of a Financial Secretary, who serves as 
deputy for the Chancellor of the^Excfiequer in the House of 
Commons; and of a Parliamentary Secretary and Junior Lords 
of the Treasury, who in practice are respectively Chief and 
f Assistant Government whips. The Board performs no func- 
tions -as a body and in practice never meets. 

Of the remaining ten or a dozen principal Executive Depart- 
ments in England, about half had a theoretical origin as 
committees of_ .thfiL .Privy Council. These are the Board of 
Trade, which never meets as a board; the Office of Works, 
composed, on the model of the Board of Trade, of Commis- 
sioners of Works and Public Buildings, who never meet; the 
Ministry of Health, whichun 1919 supplanted the old Local 
Government Board; the Ministry of Agriculture and Fisheries, 
formerly the Board of Agriculture; and the Board of Educa- 
tion, which, like the Board of Trade, never meets." """The other 
principal Departments are the Ministry of Labour, the Post 
Office, the Ministry of Transport, the Ministry of Pensions, 
the Lord Chancellor's Office, and the Law Officers' Depart- 
ment. 

In general, the evolution of the present English Executive 



Il8 THE CENTRAL GOVERNMENT 

Departments has represented a growing correlation between 
structure and function. This has been the case in all countries. 
In England, there has been merely a longer, a more uninter- 
rupted, and, therefore, a more natural development. A per- 
sistent tendency has existed for the problems and activities of 
government constantly to increase ; and governmental organi- 
zation has had a corresponding expansion. Here, again, as in 
so many English political developments, the correct perspec- 
tive is one of generations and centuries. Administrative agen- 
cies were, from the beginning, created or modified or adapted, 
in order to cope with growing needs. In modern times, more 
particularly since the Industrial Revolution, the rate of develop- 
ment has been markedly accelerated. The governmental proc- 
ess has become increasingly socialized. Hitherto unthought of 
commercial, economic, and social questions have been pressing 
for solution. Public authority, in defiance of older individualist 
principles, has been called into play on every hand. New law 
has been sought, and modern legislation has been the result. 
Such law, of course, his had to anticipate its enforcement and 
its administration. The natural result has been that new func- 
tions are e assigned to older administrative agencies, with much 
consequent modification of these agencies, and, likewise, newer 
agencies are created, more especially of an economic and social 
character. 

In England, as elsewhere, the modern growth of the admin- 
istrative branch of government has given rise to serious prob- 
lems of organization. Adaptation of existing agencies and 
creation of new agencies 'have, for the most part, followed no 
fixed plan. A solution of problems has been attempted as the 
problems have arisen; and the solution of one has been at- 
tempted largely without regard for the' others. During the 
World War, especially, much expansion was necessary without 
opportunity for careful planning. * In the result, duplication, 
overlapping, and lack of coordination have tended everywhere 
to manifest themselves. There has been a corresponding 
cost in efficiency and economy. Accordingly, administrative 
reorganization suggests itself wherever interest in improvement 
exists. The first step is usually study of the problems involved 



THE REAL EXECUTIVE 119 

and proposals, at the hands of both public agencies and private 
students, for reform. Though England has probably had less 
reason* than some other countries to consider reorganization 
acutely pressing, the question has not been ignored. Investi- 
gations have been made and proposals advanced. In this re- 
spect, England possesses an advantage not always recognized 
elsewhere, the priority of the Treasury and its effective control 
of everything cldsely related to the power of the purse. Here, 
as in other things, the English way is apparently that of piece- 
meal and gradual change. 

The correlation between structure and function that has been 
the basis of the evolution of the several Executive Departments 
through differentiation from the King's Court has also natui- 
ally manifested itself in the development of the Cabinet. This 
means that a close historical connection has existed between the 
development of the Privy Council and that of the Cabinet. 

In earlier times, the establishment of Parliament did not, as 
may easily be imagined, cause the King to cease constantly to 
seek advice and assistance from other counsellors. Varying 
groups of these counsellors were from time to time called by 
different names; but this is apparently evidence rather of the 
varying and flexible form of the Council than of the fact that 
more than one Council existed. 1 

The expression privy or secret was applied to the Council in 
the reign o EdwarcTIl (1307-1327) as a reproachful designa- 
tion for an inner circle of the King's counsellors, who were thus 
implied to be taking unfair advantage of the body of regular 
counsellors. The King's touncil became in the fifteenth cen- 
tury a somewhat insignificant institution ; but it was restored to 
a position of importance by the Tudors. 

A growth in business and the creation of new officials paved 
the way for a distinction, dating from about 1540, between 
high officials and counsellors of a political character, on the one 
hand, and the larger number of members of the Council who 
possessed qualifications of a less political kind, on the other. 
r This was the distinction between the Privy Council and the 
Ordinary Council. Under the Tudors, the Privy Council was 

1 Cf. Ch. VII, p. 83, supra. 



12O THE CENTRAL GOVERNMENT 

a powerful body, sometimes being composed of not more than 
nine or ten members. After the reign of Henry VIII (*5Q7- 
1549), it was increased in size by weaker sovereigns. Conse- 
quently, it was constrained to operate through committees. 
However, a small strong Council was restored by Elizabeth 
(1558-1603). 

Under the Stuarts, the Privy Council was again increased to 
an unwieldy size. The employment of committees was of ne- 
cessity reviyed. This laid the foundation for what are com- 
monly considered the more immediate antecedents of the 
Cabinet. Even under Charles I (1625-1649), the term "cabi- 
net council" was applied to an inner group of the Privy Coun- 
cil. Under Charles II (1660-1685), the employment of a few 
favourites of the King as advisers became a definite, if criti- 
cized and stigmatized, practice. In this second reign, the un- 
wieldy size of the Privy Council caused four small committees 
to be established for the dispatch of the important categories of 
executive business. One of these, the Committee of Intelli- 
gence, which, earlier in the reign, was a secret Committee for 
Foreign ^ff^rs, dealt with a broad variety of questions and was 
competent to serve as a small political advisory council for the 
King. However, it contained in its membership persons op- 
posed to Charles II j and the King, therefore, continued to 
seek the advice of a Cabinet, that is to say, "a secret meeting of 
his friends." , 

In the last years of the seventeenth century and the earlier 
years of the eighteenth century, the Cabinet Council came to be 
a recognized institution. Thus, just as the Privy Council had 
been evolved as a central part of the King's Council and was 
distinguished from the Ordinary Council, so the Cabinet Council 
was developed from the Privy Council. However, with the 
accession of the Hanoverians, beginning with George I (1714- 
1727), the Cabinet Council likewise became too large for ef- 
fective accomplishment. As a result, undq: the influence of 
constitutional developments like the establishment of the mod- 
ern Prime Minister and the collective, responsibility of the 
ministers, a central body of the Cabinet Council was gradually 



THE REAL EXECUTIVE 121 

created, and this inner Cabinet was essentially the Cabinet of 
today. 

The membership of the Cabinet at the present time has 
again become so large as to render the body for ipany purposes 
unwieldy. One result of this development and of the greater 
complexity of administrative business is the increased use of 
Cabinet committees. These committees within the Cabinet are 
at present commonly composed of two or three of the members 
especially qualified for or interested in a special study. They 
are set up from time to time as needs require. The employ- 
ment of a committee of this kind on finance and of another on 
home affairs is apparently regular enough for the term per- 
manent to be applied to them. In general, all such committees 
are referred to as ad hoc committees, a designation that dis- 
tinguishes them from important organisms like the Committee 
of Imperial Defence and the Economic Advisory Council. 

The Committee of Imperial Defence is without executive 
authority. It is an advisory and coordinating body, existing, 
as its name implies, for the purpose of studying, as a body or 
through sub-committees, the best interests of defence of the 
Empire. The Prime Minister acts as chairman of the Commit- 
tee, the new Minister for Coordination of Defence serving as 
his deputy 5 and its membership includes the heads, political 
and expert, of the army, navy, and air Departments, together 
with other national and even imperial ministers. The Economic 
Advisory Council was established by executive decision in 1930. 
The intention, as was expressly stated, was that it should be 
analogous to the Committee of Imperial Defence. The Coun- 
cil, it must be admitted, has not so far proved a striking success ; 
but its committees have been active enough to prevent the judg- 
ment that it has been a failure. Further extension of the use 
of such advisory bodies, it may be noted in passing, perhaps 
offers the possibility of a far-reaching development, of parlia- 
mentary government in England. Such a possibility was ex- 
pressly recognized by the Machinery of Government Commit- 
tee of I9I8, 1 when that body commended "the duty of investi- 

1 This Committee, of which Lord Haldane was chairman, was set up 
bv. and it made its Report to, the Ministry of Reconstruction, which 



122 THE CENTRAL GOVERNMENT 

gation and thought as preliminary to action" and recommended 
a 'Department of Intelligence and Research. The first step in 
this direction was the creation by executive action of a Com- 
mittee of Scientific and Civil Research in 1925. This body was, 
through the initiative of the Labour Government, supplanted by 
the Economic Advisory Council. The Prime Minister is chair- 
man of the Council. Certain ministers, for the most part heads 
of Departments of a more economic character, are made perma- 
nent members, and the Prime Minister may summdfi other 
ministers. Moreover, a third class of members is chosen by 
the Prime Minister and is composed of persons possessed of 
special industrial, financial, and economic knowledge and ex- 
perience. 

Another indication of the unwieldy size of the modern 
Cabinet is the fact of the establishment during the World 
War of the War Cabinet. After a short experience with a coali- 
tion Cabinet, which in reality represented an increase in size 
and unwieldiness, conditions of crisis caused the creation of a 
Cabinet of five members. Only one of these members, the 
Chancellor of the Exchequer, had any departmental duties. In 
turn, the War emergency gave rise to another Cabinet phe- 
nomenon of importance. " This was the Cabinet Secretariat. Be- 
fore 1916, informality and secrecy were pronounced character- 
istics of Cabinet meetings. Meetings appear not to have been 
preceded by the formulation of any carefully prepared pro- 
gramme. No official minutes were kfept. An account of what 
went on was reported to the King by the Prime Minister ; and 
some notes were apparently taken by other ministers. The 
Secretariat, established during the War, rapidly assumed con- 
siderable proportions 5 but it was afterwards reduced to some- 
thing like its present composition, which is that of a Secretary 
and between thirty and forty assistants^ The publication of 
Cabinet proceedings was likewise discontinued after the War 5 

existed at that time. The terms of reference of the Committee were as 
follows: "To enquire into the responsibilities of the various Departments 
of the central executive Government, and to advise in what manner the 
exercise and distribution of the Government of its functions should be 
improved." 



THE REAL EXECUTIVE 123 

and, though minutes arfe kept that may some day be accessible, 
what takes place in a Cabinet meeting is as secret as ever. The 
Secretariat performs such duties as keeping records and in- 
forming the various Departments of decisions on the part of 
the Cabinet, its committees, and similar bodies. 

The Cabinet is in a real sense the characteristic institution of 
the English type of government. It plays a role the importance 
of which it would be difficult to exaggerate.! This important 
position is, of course, the result of an historical process j for, just 
as the composition and organisation of the Cabinet are the result 
of development through differentiation, so the operation of 
the Cabinet and of the Cabinet system of*government has, like 
other things English, been slowly and gradually developed. 
Indeed, the essential as well as the less essential features of 
Cabinet government are to be fully understood only in terms 
of EnglisiuliistQry, . Inasmuch as the English Cabinet system is 
the classical example of a type of government that has been 
imitated on a large scale, the general features of the type may, 
perhaps, be regarded as the result in some sense of history as 
such. | However, the particular features of the English system 
represent, in a peculiar sense, the result of English history. 
This is illustrated by the position of the King in the working of 
Cabinet Government. 

Experience outside England not only shows that the Cabinet 
system may operate in the absence pf a King, but it also suggests 
that the system might, as has been said, operate at times without 
any agent at all of an essentially formal type. Hence, the 
complete exclusion of the King in England from a responsible 
part in practical politics, though it affects in numerous ways the 
system of which he is a part, represents a perfectly natural de- 
velopment in the* history of England. This exclusion, corre- 
sponding as it does- with the predominant position of the Prime 
Minister, can doubtless be justified on the principle of executive 
unity j and yet most of the experience of other countries sug- 
gests that danger of divided responsibility under the Cabinet 
system derives not so much from a potentially strong head 
of the sfate as frnm actual Iv strono- ministers, officers of 



124 THE CENTRAL GOVERNMENT 

lative committees, and the like. At all events, principle does 
not require, though history explains in England, such things 
as the political .character of certain officers of "the King's or 
Queen's! household and the necessary presence of a minister 
at a formal event like the presentation of a diplomat's^ creden- 
tials to the Sovereign. These things represent the seriousness of 
an historical struggle. They are a manifestation of the uncom- 
promising nature of the insistence with which the King was 
allowed to remain powerful in theory only on the condition 
that the responsibility of the Cabinet in practice should be 
literally complete. The Cabinet represents the victory of 
political democracy in a real contest between the King and the 
representatives of the people.| Hence, as experience shows, if, 
in any country, the essential characteristic of the prevailing sit- 
uation is the victory of political democracy or strong belief in 
it, the Cabinet system is likely to be established as the only 
natural course of action. Parliamentary Government, as the 
Cabinet system is also called, is everywhere, except in America, 
synonymous with political democracy. 

The English Cabinet has more than once been referred to 
as a link, a hinge, a buckle, and other things of the kind. What 
is conceived of in these figures as being joined together is 
doubtless clear enough. However, methods of expression may 
vary as much, perhaps, in respect of that which is bound as in 
respect of that which binds. I njyery general terms, the Cabi- 
net connects theory and practice. In more specific terms, it 
joms_the_JKing and Parliament. In this second respect, the 
concept involved is sometimes expressed in slightly less particu- 
lar form by the proposition that the Cabinet binds together the 
executive and legislative authorities. Though, in reality, the 
Cabinet may be argued to be the executive as plausibly as it may 
be argued to be a part of the executive, it& existence and its 
position do inevitably raise the primordial question of the rela- 
tionship between law-making and law-enforcement. 

Walter Bagehot in several places speaks of the "fusion" of 
legislature and executive in England. He was concerned with 
contrasting, as any serious account must contrast, the theory and 
practice of the English Constitution j and he placed in antithesis 



THE REAL EXECUTIVE 125 

the traditional principle of the separation of powers and the 
actual practice of the Cabinet system. So also, the proposition 
is sometimes encountered that Parliamentary Government is 
the negation of the doctrine of the separation of powers. In 
these statements much truth is contained. 

Of the various classifications that are commonly made of 
modern governments, that is probably the most valuable which 
employs as a standard the relationship of legislature and execu- 
tive. This classification assumes that in all modern democratic 
states, an agency for law-making and an* agency for law-enforce- 
ment must exist. It anticipates, as a result, that the question 
will present itself of what ought to be the proper relationship 
between these agencies and their activities. In practice, every 
government must attempt an answer to this question. In gen- 
eral, only two answers are possible, that the relationship ought 
to be close, or else that it ought not.' This, in turn, is the basis 
for the classification of modern democratic governments into 
those that are parliamentary in form and those that are not. 
Of the second kind of governments, the United States is the 
only example among great states. This government, as is well 
known, is based on a special interpretation of the famous doc- 
trine of the separation of powers and on its corollary of "checks 
and balances." On the other hand, all other great countries 
that are or have been democracies have regarded Parliamentary 
Government as the better answer, if not the only natural 
answer, to the question. After the War, it is still not without 
interest to observe, new states, with an opportunity of deliberate 
choice, invariably elected to establish the Parliamentary System. 
English government remains, of course, the classic and typical 
example of the Parliamentary System. 

Perhaps the simplest manifestation of the close relationship 
between the legislature and the executive under the English! 
system of government is the fact that members of the Cabinet 
are, and by binding convention must be, members of Parliament* 
This situation results simply and naturally from the fact that 
the members of the Cabinet are by definition leaders of the 
majority in thte House of Commons. As leaders, they must 
assume direction of the principal activities of Parliament; and 



126 THE CENTRAL GOVERNMENT 

hence their presence in Parliament is exceedingly important. 
Such an arrangement offers an effective opportunity for the 
executive to present, to advocate, and to defend its views and 
its proposals. In England, this is accomplished sufficiently 
conveniently in practice by membership of Cabinet ministers in 
one House or the other. 

Historically, early in the eighteenth century, the importance 
of the arrangement whereby ministers are members of Parlia- 
ment was fortunately recognized. As a matter of fact, the Act 
of Settlement (1701) stipulated "That no Person who has an 
Office or Place of Profit under the King or receives a Pension 
from the Crown shall be capable of serving as* a Member of 
the House of Commons." This provision manifestly included 
ministers; and, had it prevailed, it would have made the Cabi- 
net system impossible. However, before it could come into 
operation, its practical inconveniences were sufficiently recog- 
nized to cause its modification. When the nature of Parlia- 
mentary Government became fully understood, the importance 
of this close relationship between the Cabinet and Parliament 
was easily,apprehended; so that, in France, not only are minis- 
ters customarily members of Parliament, but the Constitution 
expressly authorizes them to be present in either Chamber. 
The same considerations have been involved in proposals made 
in the United States with a view to giving to heads of depart- 
ments seats in Congress, from membership in which they are 
excluded by the Constitution. 

The English Cabinet is sometimes referred to as a committee 
of Parliament. However, except for the fact that members 
of the Cabinet are also members of Parliament, the Cabinet 
appears to present, in respect both of structure and of function, 
more points of contrast with than of resemblance to an ordinary 
legislative committee. Thus, the fact that members of the 
Cabinet belong to both Houses of Parliament causes the Cabinet 
in this respect to display resemblance to an American conference 
committee more than to the usual standing committee. Again, 
the several political parties of an assembly are normally repre- 
sented on a legislative committee in rough proportion to their 
strength, whereas, in normal English practice, that is to say, 



THE REAL EXECUTIVE 127 

unless a coalition ministry is exceptionally formed, the Cabinet 
is composed wholly of members of one party. Likewise, similar 
contrast exists with regard to the normal activities of the Cabinet 
and of a typical legislative committee. 

The presence of English Cabinet members in Parliament is 
to be envisaged not alone in terms of a natural arrangement ^by 
which the ministers may exercise their leadership of Parlia- 
ment. It is also, and even primarily, to be thought of as con- 
nected with the control of Parliament, more especially of the 
House of Commons, over the ministers. Indeed, ministerial 
responsibility is, in a definite sense, the characteristic feature of 
Parliamentary Government. 

Responsibility y of course, is manifestly the same word as 
answerability . In ordinary usage, both of these words appear 
to be employed somewhat more familiarly than the substance 
of the concept they stand for is clearly apprehended. In reality, 
as in the case of so many terms used in the discussion of human 
affairs, the meanings of responsibility or of responsible vary in 
considerable degree. On the one hand, a person or group of 
persons may be considered responsible or answerable when 
circumstances are such that their causal connection with an act 
or a condition may in a given case be definitely determined. 
In a case like this, a person, or group of persons, thought of 
as responsible, or in a responsible position, are clearly not re- 
quired literally to furnish answer. The responsibility may be 
said to be potential, unsanctioned, or moral. On the other 
hand, a person or group of persons may be thought of as 
answerable in the sense that if their causal connection with an 
act or a condition is in a given case or in given circumstances 
considered to be definitely determined, they must suffer an 
established penalty. Suth responsibility may be considered 
politically organized and actual. In practice, where responsi- 
bility is organized, removal from office or loss of position is 
the typical political sanction. With Parliamentary Government, 
sanction in the form of resignation has come to be naturally 
associated. 

Since, then, ministerial responsibility is inevitably to be 
thought of in connection with removal from office, since, in the 



T28 THE CENTRAL GOVERNMENT 

second place, power of removal and power of appointment arc 
natural concomitants, and since, moreover, the matter of ap- 
pointment and removal of English ministers is one of the many 
examples of the wide divergence between theory and practice 
under the English Constitution, ministerial responsibility faces 
in two directions. In theory or, in other words, in the bare 
technical legal sense, the ministers being appointive a^d re- 
movable by the King, they are, in the same sense, responsible 
to the King. This existing theoretical situation was, ol 
course, in former times also the situation that prevailed ir 
practice. On the other hand, in present English practice, the 
ministers are responsible to Parliament. More specifically, they 
are responsible to the House of Commons. This means, as is 
well known, that the ministers must "possess the confidence* 
of a majority in the House of Commons. If such a majority 
by any deliberate action, demonstrates that the policy of thf 
Cabinet is unacceptable to it, the ministers must resign, provided 
the House of Commons appears to be truly representative oJ 
the country. This proviso, in turn, means that in effect the 
Prime Minister and Cabinet may take an appeal to the people 
from a decision of the House of Commons. Such an appeal 
involves, of course, what is known as dissolution. The Prime 
Minister and the Cabinet are said to "go to the country." The) 
are also said, in constitutional language, to advise the King 
to dissolve Parliament. In effect, they decide that a new House 
of Commons shall be elected. Hence, a decision of the House 
of Commons adverse to the Cabinet involves resignation of the 
Cabinet or new elections. In the case of new elections, if the 
new House of Commons is, like the outgoing one, hostile tc 
the Cabinet, the Cabinet can no longer delay its resignation 
If tlie newly elected House of Commons turns out to be Avour 
able to the Cabinet, this means merely that the old House was 
not truly representative of the electorate and that the Cabinei 
is, in reality, possessed of the confidence of the representative! 
of the people. Therefore, of course, the Cabinet does not re 
sign. In the result, the legislature and the executive are always 
in harmony. As a matter of fact, the Parliamentary System wil 



THE REAL EXECUTIVE 129 

work only on the assumption that they are in harmony. Indeed, 
this harmony in a sense defines Parliamentary Government. 

English ministers, then, are in theory responsible to the 
King and in practice to Parliament. The House of CommoHs, 
according to what has come to be called the "literary" account 
bf the matter, may throw the whole Ministry out of office 
Whenever it sees fit and substitute for it another set of ministers. 
This, however, does not mean that the Cabinet is in a position 
of subordination and subjection to Parliament. The House of 
Commons is not to be thought of as exercising a whim when 
it 'turns a Cabinet out. In fact, the direct overthrow of a 
Ministry by the House of Commons is, in practice, a relatively 
rare event. The power of dissolution, doubtless more than any 
one thing, prevents petty abuse of power j and this, together 
with the fact that the Cabinet normally can expect the support 
of a compact and disciplined majority, ensures for tfie executive 
a position of much strength. Indeed, the complaint is not in- 
frequently heard in England that the Cabinet is relatively too 
strong and that the "private member" is reduced to a level of 
undignified unimportance. However that may be, the Cabinet 
is responsible to Parliament without being subordinate to it. J^ 
watchful Opposition, it is true, possessed of a skeleton Cabinet 
organization and of a programme of its own, is more than 
willing at any time to undertake the government of the country 5 
so that the Cabinet must do nothing that it is unwilling to have 
subjected to the bright light of criticism. A,t the same time, 
minor mistakes are not of themselves sufficient to cause the 
downfall of a Cabinet. They merely go into the balance against 
it. The Cabinet need have little fear as long as its general 
policy is acceptable to the Commons and to the country. 

In countries that have adopted the English or parliamentary 
system of government, the phenomenon of counter-signature has 
been regarded as closely connected with ministerial resp&Qsi-' 
bility. Apparently, such countries, faced with the problem of 
reducing to definite written form a system of government that 
in England grew naturally and was for the most part un- 
planned, have picked out, so to say, specific institutions con- 
ceived to be integral parts of the Parliamentary System. In 



I3O THE CENTRAL GOVERNMENT 

this \fray, counter-signature has been incorporated into constitu- 
tions that have attempted to set up Parliamentary Government. 
This means that acts done in the name of the formal head of 
the state must be counter-signed by a responsible minister. 
Although, of course, counter-signature of itself cannot in any 
fundamental sense bring ministerial responsibility into existence* 
it can be regarded as a striking symbol of an historical process. 
Ministerial responsibility, as the distinguishing characteristic of 
the English Cabinet, made impossible for the traditional posi- 
tion of the King to be left largely unaltered in theory, in spite 
of the victory, at the end of the seventeenth century, of Parlia- 
ment over the King. 

According to the old principle of the Common Law that "the 
King can do no wrong," the King was historically, and still is 
theoretically, beyond the reach of legal and judicial processes. 
Manifestly, some practical modification of this situation was 
necessary, if absolute royal power was in some manner to be 
softened down. As a matter of fact, a beginning was made 
when the Common Law Courts asserted, as a corollary of royal 
immunity, that a minister could none the less not plead a com- 
mand of the King as justification for his own wrongful act. 
The House of Commons possessed in the institution of impeach- 
ment an ultimate sanction for such ministerial accountability. 
This institution, which had been employed at times in the 
Middle Ages, was revived with especial vigour during the 
struggle of Parliament against the Stuarts. Such a situation, 
it must be manifest to anyone who will attempt the wide per- 
spective of generations and centuries, ensured that in the long 
run, no self-respecting minister would consent to accept the 
consequences of royal acts, unless the decision should be actually 
his own. The simple result was that, in the end, the position 
of the King became a formal one, and his ministers became the 
Real Executive. Likewise, in the course of time, Parliament 
acquired the power and means to control the ministers 'politi- 
cally as well as legally. Indeed, when its control became politi- 
cal, its legal control was almost altogether supplanted. If min- 
isters must resign when their political actions are unacceptable 
to Parliament, clearly they are extremely unlikely ever to reach 



THE REAL EXECUTIVE I%I 

the point where they violate the law and become impeachable. 
Abundant evidence of this is to be found in the fact that there 
has been no case, in more than two- hundred years, of a minister 
impeached for a matter related to his political duties. 

An important and far-reaching aspect of the responsibility 
of English ministers to Parliament has been their collective 
responsibility. The ministers normally come into office and 
resign as a body. Suc{i a practice may be regarded as only 
natural in view of the fact that the ministers usually belong all 
to the same party, that the ministers are subordinate to the 
Prime Minister, that elements of policy in modern government 
tend to be jnextricably intfer-connected, and in view of other 
similar considerations. This, however, does not mean that an 
individual minister never resigns without bringing about the 
downfall of his colleagues. Rare modern examples of such 
individual resignations can be cited. If irreconcilable differences 
exist between one minister and the others, the situation may be 
understood in sufficient time for the single minister to withdraw 
through loyalty to his party and friends. On the other hand, 
this remains the exception. Usually, political conditions are 
such that a false step by one member would cause the downfall 
of the others; and, still more, dissention Hi a Cabinet commonly 
means its disintegration. For these reasons, no little interest 
was felt by students of the English Constitution when, in I93 2 > 
announcement was made that four members of the MacDonald 
coalition Cabinet were to be allowed to argue and to vote against 
the fiscal policy ojF the Cabinet. However, the likelihood ap- 
pears to be that this abnormal departure from traditional 
practice, which after all appeared in critical circumstances 
marked by more than one unusual aspect, will have no perma- 
nent effect on collective responsibility. 



CHAPTER X 
THE REAL EXECUTIVE 

2. ROUTINE: THE CIVIL SERVICE 

The composition of the several English Executive Depart- 
ments is, in general/ the same. The agents involved fall, as 
in the case of the Real Executive as a whole, into two numeri- 
cally unequal classes, th^j>pliti(al^and. i ^^.jiqn-oliti(^l. The 
political head of a Department is a minister. He is, in a 
majority of cases, a member of the Cabinet. There is, likewise, 
at least one Under-Secretary of State or Parliamentary Secre- 
tary, a member of the Ministry but not of the Cabinet, who 
assists the head of the Department. The highest non-political 
agent in Department is known as the Permanent Secretary 
or Permanent Under-Secretary of State. In addition, there is 
alsmall army of lesseiwion-political agents. Highest and lowest, 
the non-political agents make up, in general, the Civil Service. 

The Civil Service is technically to be distinguished from the 
Defence Services or the Armed Forces of the Crown. The 
two together constitute the Routine Executive. The Civil Ser- 
vice, therefore, includes, in general, persons, of a non-political 
and noft-military character who are employed by the central, 
as distinguished from the local, government. These govern- 
mental employees or civil servants number approximately half 
a million. They fall into a great number and variety of classes 
and grades. 

More than half of the great body of English civil servants, 
that is to say, more than a quarter of a million, are employed 
in the Post Office Department. About 100,000 are to be found 
in the three Defence Departments. If to these four Depart- 
ments should be added six others Customs and Excise Depart- 
ment, Inland Revenue Department, Ministry of Health, 



THE REAL EXECUTIVE 

Ministry of Labour, Ministry of Pensions, and Office of Works 
the ten together would be found to contain more than ninety 
per cent of the whole body of civil servants. Nevertheless, in 
actual distribution, civil servants are said to be employed in 
nearly one hundred Departments. 

English civil servants are usually referred to as the perma- 
nent officials and agents of the administrative branch of govern- 
ment. For all practical purposes their tenure is, in reality, 
during good behaviour. The question of tenure is, moreover, 
closely connected with the matter of recruiting civil servants. 
As a matter of fact, with respect to both these important con- 
cerns, there exists the wide difference between theory and prac- 
tice that is so characteristic of the English Constitution. In 
theory in other words, according to the narrow terms of law 
the several hundred thousand civil servants are freely chosen 
by the Crown, that is to say, by responsible ministers. Legally, 
they may by the same authority be dismissed at any time 
without notice and without compensation. In practice, the ap- 
plication of well recognized principles not only results in 'life 
tenure, but secures careful selection and establishes clearly 
understood arrangements in respect of remuneration, promo- 
tion, retirement, and the like. * 

In general, two methods exist by which persons who are em- 
ployed by the government mqy be chosen. In the first place, 
positipns of a technical, clerical, and routine character may be 
filled for political reasons. Party workers and others who are 
thought to have deserved well of those in authority are not 
only rewarded by appointment to such positions, but they are 
thereby also made effective parts of a political organization 
favourable to those in office. This arrangement is, of course, 
known in America as the ^poils sysjej^" because it is felt to 
make application in practice^ oi: the dictum that "to the victors 
belong the spoils." It gives rise in any country to the phe- 
nomenon of "patronage." Moreover, experience Suggests that 
if an office is mled for political reasons, it is in most cases 
filled badly. The agent involved is unlikely to be qualified; 
and he has little incentive to train himself, for, among other 
things, he frequently knows that, with a change of political 



134 THE CENTRAL GOVERNMENT 

fortune, his position will go to another. The simple character- 
istics of the spoils system are, therefore, inefficiency and inser 
gurity. The other system is what may be called the "merit 
system," Here, neither recruitment nor tenure is dependent 
upon political considerations. ^ As the expression employed im- 
plies, qualities regarded as being desirable* in connection with 
the forms of employment contemplated are the determining 
factors. Thus, selection is placed on a competitive basis and is 
normally determined by some sort of examination. Continu- 
ance in the service ^nd promotion are likewise determined by 
merit and not by political considerations. Arrangements for re- 
tirement with a pension are established. In this way, tenure 
becomes secure and governmental service becomes a career. 

In no country are the principles of the merit system so highly 
developed and so widely extended as in England. Therefore, 
English practices are highly instructive. They are the imme- 
diate result of about a century of experience. - 

Until kbout the middle of the nineteenth ,century, one of the 
aspects of the spoils system flourished in England. Appoint- 
ment to routine administrative positions was made on political 
or partisan grounds. On the other hand, the practice of a 
wholesale change of administrative agents on the occasion of a 
shift of power from one party to another appears never to have 
prevailed. However that may be, the situation was gradually 
recognized to be inefficient and otherwise unsatisfactory j and 
reform of the Civil Service was urged. In the late eighteenth 
and early nineteenth centuries, writers like Burke, Bentham, 
and Carlyle, of whom the greatest in this respect was Bentham, 
stressed the importance of improvement. "Actual achievement 
of reform, however, was the work of others. Needless to say, 
it was vigorously opposed at every step by entrenched political 
and other interests. ^ 

The history of the English movement for civil service reform, 
ill the early nineteenth century must begin with some mention 
of what is known as the t^leyjbury expenment. Haileybury 
was the name of a school established m 18 ij tor the purpose 
of furnishing a rigorous training for young men destined to 
go to India in the service of the East India Company/ On two 



THE REAL EXECUTIVE 135 

occasions when the charter of the Company was subject to re- 
newal, namely, in 1833 and in 1853, ste P s of some importance 
were taken with a view to diminishing such favouritism as sur- 
vived from the period preceding the establishment of the 
Haileybury School. In 1833, the Charter Act required that, in 
case of a vacancy, four candidates should be nominated from 
the School and that a choice should be made from amongst the 
four by competitive examination. In 1853, largely through 
the effort and influence of Macatilay, substantially the present 
method of filling vacancies for service in India was adopted. 
The method was that of open competitive examination. The 
Haileybury School was abandoned. The reform was of far- 
reaching importance; but, after all, only the India service was 
involved. 

Meanwhile, beginning in the third decade of the nineteenth 
century, increasingly adverse opinion of the worst abuses of 
patronage caused some improvement in the services other than 
that for India. Such improvement, however, was not general, 
but confined to particular Departments. Entrance examinations, 
were in some cases established, which kept out persons wholly 
without ability j and, in a few instances, use was even made of 
competitive examinations. 

The most important dates in the nineteenth century history 
of English civil service reform are 1855 an d 1870. In i_85j> j 
an Order in Council created the Civil Service Commission^ 
This was a small group of three members, who were to serve 
as a general examining board in connection with "young men 
proposed to be appointed to any of the junior situations. in the 
Civil Establishments." The creation of this Commission was 
the result of a series of investigations in the preceding five years. 
These investigations were directed for the most part by the 
Permanent Secretary of the Treasury, Sir Charles Trevelyan, 
brother-in-law of Macaulay. An elaborate series of reports 
employed the expression civil service apparently for the first 
time. Distinguished people in the country offered, upon re- 
quest, their opinions concerning the recommendations proposed. 
John Stuart Mill, for example, thought that adoption of the 
plan suggested would be "one of the greatest improvements 



Ij THE CENTRAL GOVERNMENT 

. . . ever proposed by a Gcrvernment." At the same time, 
political opposition, doubtless more natural with respect to the 
home services than with respect to India, was formidable. It 
so continued for many years. 

Though it would be difficult to overestimate the importance 
of the establishment of the Civil Service Commission, the effects 
on the abuse of patronage were not at once extremely far-reach- 
ing. The use of examinations as the basis for appointments was 
confined to junior positions. Even here, the competitive variety 
of examination was permissive rather than compulsory, for the 
wishes of the political heads of the several Departments con- 
tinued in considerable degree to be a determining factor. An 
important step was taken in .J j j>_9> when Parliament passed a 
S^erannuation Act, according to the terms of which admission 
with a certificate from the Civil Service Commission -should for 
pension purposes determine, with several exceptionsj member- 
ship in the Civil Service. Opinion was not yet rtady, as a 
committee of Parliament recognized in 1860, for the establish- 
ment of open competition throughout the service. This reform, 
however, was realized at the end of another ten years. It was 
the accomplishment of an epoch-making Order in Council of 
1870. Since that time, several careful studies and a number 
of Orders in Council have furnished the basis for increased 
efficiency in matters of recruitment, admission of women, re- 
muneration, classification, promotion, and the like. The result 
has been a large degree of unification. 

The Civil Service has become in considerable measure one 
service. At the same time, in a technical sense, a responsible 
minister at the head of a Department appoints and has under 
his orders every member of the Civil Service. Hence, such 
unification as has been brought about has been the result of 
certain causes that transcend the technical situation. Thus, a 
series of Superannuation Acts regulate, with minor exceptions, 
all whole time members of the Service. Again, classification 
has developed to the point w{iere, for purposes of efficient 
organization, certain classes of civil servants are made common 
to various Departments, with a single scale of pay and a single 
method of recruitment by examination. Moreover, a bonus sys- 



THE REAL EXECUTIVE 137 

tern that causes remuneration to vary Automatically with changes 
in the cost of living is applied to large classes of civil servants 
without regard to Department. So also, legal provisions estab- 
lishing minimum hours of work for all civil servants and setting 
up machinery for discussing and settling questions concerning 
other conditions of service have been unifying causes. And, last 
but not least, a tendency towards unification has been furthered 
by control on the part of the Treasury and by the work of the 
Civil Service Commission. 

The Civil Service Commission continues to be composed of 

hree members. They are, of course, appointed by the Crown. 

^his means that in practice they are chosen by the Cabinet, on 
us responsibility, after the advice of the Treasury has been 
sought. The members of the Commission, who normally have 
previously served for long periods in governmental employ- 
ment, are not appointed for a definite term and are, thus, for 
practical purposes, irremovable. One of them is .first commis- 
sjonen and, of the two assistant commissioners, one serves as 
director of examinations and the other as secretary. They are 
aided in the performance of their duties by a staff of assistants, 
whom they are authorized to employ with the consent of the 
Treasury. The Commission remains essentially an examining 
agency. It is concerned, therefore, with recruitment and pro- 
motion. It issues certificates attesting to the age, health, citi- 
zenship, character, and knowledge and ability of candidates. 
In a definite sense, the responsibility of the Civil Service Com- 
mission comes to an end at that point. Other matters concern- 
ing conditions in the Service bring into play the actual control 
of the Treasury, which potentially exists in large measure even 
with respect to the Civil Service Commission itself. 

The general control of the Treasury over the Civil Service is, 
of course, due in large measure to control of the purse.. More- 
over, the Treasury, in addition tojtsjjower to maintain this 
general supervision, has at timgs^ecei^a^P ress powers of a 
more particular kind through(Or^er^jnjCwnoT) More espe- 
cially, an Order of 19 20 ^authorizes the Treasury "to make 
regtdationsTor"controlling the conduct of His Majesty's Civil 
Establishments, and providing for the classification, remunera- 



138 THE CENTRAL GOVERNMENT 

tion, and other condition^ of service of all persons employed 
therein, whether permanently or temporarily." 

The Permanent Secretary of the Treasury, that is to say, the 
highest non-political agent in the Treasury, is technically con- 
sidered to be head of the Civil Service.v^bout half of the 
approximately dozen divisions in which the Treasury is organ- 
ized are concerned with conditions of government service. They 
are, for this reason, called ^^abjislimen^divi^ions.^!, Since 
KM^, they have formed a unit, abrancR of the Treasury known 
as the Establishments Department. This branch is headed by 
a principal assistant secretary known as the Comptroller of 
Establishments. This official's connection with the Civil 
Service is, of course, more important than that of the technical 
head, the Permanent Secretary. In the various Departments, 
there^ likewise exist establishment officers, who, however, are 
responsible to the heads of Departments, not to the Treasury. 
Nevertheless, these establishment officers form an important 
connecting link between the Treasury and the several Depart- 
ments y and they, in general, are concerned with Civil Service 
matters within the Departments. More especially, they are 
^members of the Wfri^ey Cpuncils in the Departments. 

Whitley Councils, which likewise exist to a certain extent 
in private industry, are bodies of employers and employees 
in the Civil Service, of officials and staff that deal with condi- 
tions of work. In the Civil Service, there exists, in addition 
to the Councils in the Departments, a National Council, which 
is concerned with general Service interests and which must have 
referred to it from the Councils in the Departments questions 
of a general nature. Both types of Council are composed of 
equal numbers of Civil Service officials and staff. In practice, 
the official side is represented by Permanent Secretaries and 
other members high in the Service j the staff is represented 
through members chosen by the groups or associations into 
which civil servants are organized. 

The government employees who make up the English Civil 
Service perform a great variety of functions. On this basis, 
they fall into several classes. In the first place, about three- 



THE REAL EXECUTIVE 139 

fourths of them are either industrial workers, such as employees 
in dockyards, arsenals, and the like, or else "manipulative" 
workers, principally employees of the Post Office. These large 
numbers of workers, totalling more than 300,000, are character- 
ized by the fact that, aside from Civil Service status, they do 
not differ from analogous workers in commerce and business 
outside the government. In the second place, considerable 
numbers of professional, scientific, and technical agents form 
part of the Service, varying from doctors, lawyers, engineers, 
architects, and scientists to draughtsmen, technical assistants, 
and the like. With these, on. the basis of special qualifications, 
may perhaps be grouped typists and short-hand typists. This 
leaves, finally, with a few other exceptions, between 75,000 
aind 100,000 administrative and clerical agents, who may be 
considered typical civil servants. At present, they fall into four 
classes, known as Reorganization Classes. 

Though preparation for a reorganization of the Civil Service 
was made just before the World War, action was postponed 
until the post-war period. Establishment of the Reorganization 
Classes carried out the recommendations of a Report of 1920 
by a Reorganization Committee, which was a committee of the 
National Council^ The Report set out a simple two-fold 
division. "The administrative and clerical work of the Civil 
Service," it ran, "may, be said, broadly, to fall into two main 
categories. In one category may be placed all such work as 
either is of a simple mechanical kind or consists in the applica- 
tion of well-defined regulations, decisions and practice to particu- 
lar cases ; in the other category, the 'work which is concerned 
with the formation of policy, r with the revision of existing prac- 
tice' or current regulations and decisions, and with the organiza- 
tion and direction of the business of Government." Each of 
these two main categories contains two of the four existing 
general classes. 

Of the Reorganization Classes, the fourth in the scale is the 
Writing Assistant Class. It is a Class confined wholly to 
women, of whom thqre are between 5,000 and 6,000. Em- 
ployees of this Class are to be found primarily in Departments 
that require large amounts of routine work. About one-half 



I4C THE CENTRAL GOVERNMENT 

are employed in the Post Office, and practically all the others in 
the Ministry of Health, in the Ministry of Labour, and in the 
Inland Revenue Department. The members of the Class are 
recruited between the ages of sixteen and seventeen by means of 
examination held twiqe yearly.. The examinations are, of 
course, competitive 5 and, according to the general principle of 
English Civil Service examinations, they are general in char- 
acter and correlated with a given stage of the educational system 
of the country.. They are, in the case of writing assistants, 
designed to be suitable for girls who are finishing the elemen- 
tary and central schools, though, in practice, about three-fourths 
are djrawn from secondary or private schools. . The general 
situation seems to be that those who enter the Class possess 
an education superior to that which their work requires. About 
half the whole number of writing assistants are between the 
ages of sixteen and twenty j about one-fourth are between twenty 
and twenty-five 5 and the remaining fourth falls into two 
roughly equal parts, one between twenty-five and thirty, the 
other over thirty. A weekly basic pay exists, to which the cost of 
living bonus is added. Tfie basic weekly pay is slightly higher 
in- London 'than elsewhere. It rises for about ten years by 
annual increases of two shillings a week. Opportunities likewise 
exist for writing assistants to be promoted to a higher class j 
and, in practice, certain numbers of writing assistants are success- 
ful in open competitive examinations tor other classes. In 
recent years, the promotions number two hundred or three hun- 
dred a year. The duties of the Writing Assistant Class include 
things like punching, tabulating, writing acknowledgements, 
filling out forms, addressing letters, keeping card indexes, and 
the like. 

The Reorganization Class next above the Writing Assistant 
Class is the Clerical Class. This is a large class of some 50,000, 
composed of both men and women. The age limits are sixteen 
and seventeen, the same as for writing assistants. Owing to 
post-war measures calculated to change to a permanent status 
the position of ex-Service men who had been temporarily em- 
ployed, open competition has not been held regularly every 
year. The examinations, when they are held, are framed so 



THE REAL EXECUTIVE 14! 

as to correspond with the point reached at the intermediate stage 
of a secondary school course. The provisions for remuneration 
are analogous to those for the Writing Assistant Class* How- 
ever, the basic pay, with regular increases, is reckoned on an 
annual rather than a weekly basis. Likewise, there are sub- 
divisions into junior and senior clerical grades, within each of 
which there is a different scale for men and women and for 
London and elsewhere. Considerable numbers of those who 
are admitted to this class enter by promotion. This has recently 
been especially true in the case of women. Members of this 
Class, in their early career, perform, in offices where no large 
mass of routine work exists, the same duties as writing assistants. 
In addition to this, Jjie duties of the Clerical Class include super- 
vising the work of writing assistants, examining and checking 
such things as accounts, claims, and returns, and collecting and 
preparing materials of various sorts. 

The third Reorganization Class is known as the Executive 
Class. It is recruited from both men and women. When 
entrance is gained through open competition, the candidates 
must be between the ages of eighteen and nineteen. The 
examinations are based on the development reached at the end 
of secondary education. Since the time of the establishment of 
this Class, only a few open competitions have been held; for, 
at the time of reorganization, somewhat excessively large num- 
bers of the existing civil servants, known for the most part as 
second division clerks, were incorporated into the Executive 
Class. Even in years in which competitive examinations have 
been held, somewhat larger numbers have entered through 
promotion than as a result of competition. Whatever the 
method of entrance, a period of strict probation is required. 
The total number in the Class somewhat exceeds 4,000. The 
situation with respect to such pay as has been standardized 
resembles that prevailing in the Clerical Class. However, out- 
side limits of 100 and 500 per year (as compared with 60 
and 400 in t;he Clerical Class) do not apply throughout, other 
scales, the highest with an outside limit of 1000, prevailing in 
some Departments. There are, in the Executive as in the 
Clerical Class, distinctions between lower and higher grades, 



142 THE CENTRAL GOVERNMENT 

between men and women, and between London and elsewhere. 
"Executive" duties are indicated by the recommendations con- 
tained in the Report of the Reorganization Committee. "To 
this class/' reported the Committee, "we would assign the 
higher work of supply and accounting Departments, and of 
other executive or specialized branches of the Civil Service. 
This work covers a wide field, and requires in different degrees 
qualities of judgment, initiative, and resource. In the junior 
ranks it comprises the critical examination of particular cases 
of lesser importance not clearly within the scope of approved 
regulations or general decisions, initial investigations into mat- 
ters of higher importance, and the immediate direction of small 
blocks of business. In its upper ranges it is concerned with 
matters of internal organization and control, with the settle- 
rr)ent of broad questions arising out of business in hand or in 
contemplation, and with the responsible conduct of important 
operations." 

In most respects, the most interesting class in the English 
Civil Service is the Administrative Class. It is composed of the 
cream of tfae civil servants. Its members are, in a majority of 
cases, university graduates. Aside from about one-fourth of 
its members, who have been promoted from other classes, the 
remainder of the Administrative Class has been directly re- 
cruited by open competition. The annual examinations are open 
to men and women between twenty-two and twenty-four years 
of age. The competition is calculated to appeal to graduates, 
especially of Oxford and Cambridge, who have obtained the 
highest honours. The high standard of the examinations is fre- 
quently said to be unique. The Class consists, in the home ser- 
vice, of slightly more than 1,000 members. In addition to this, 
it includes posts in the diplomatic and consular service as well 
as in India, Ceylon, and Northern Irelahd. Those who are suc- 
cessful in' the competition are generally assigned, according to 
their choices in order of their standing, to such vacancies as 
exist. They enter with a rank known as that of assistant prin- 
cipal. Here they undergo a rigorous probationary period. If 
they survive this period, they find, after a further period vary- 
ing from about one to ten years, other positions open to them. 



THE REAL EXECUTIVE 143 

Within the Service, they normally succeed to the higher posts 
by progressive promotion. These higher posts involve the 
grades of principal, assistant secretary, principal assistant secre- 
tary, and permanent secretary or his deputy. The basic pay, 
with regular annual increases up to a certain maximum, varies 
with the grade. An assistant principal begins at 200 a year, 
and may be advanced by 20 increments to 500. The per- 
manent heads of departments receive an annual Salary, of 
3,000. The Report of the Reorganization Committee consid- 
ered the appropriate duties of the Administrative Class to be 
"those concerned with the formation of policy, with the coordi- 
nation and improvement of Government machinery, and with 
the general administration and control of the Departments of 
the public Service." 

Ihe English Civil Service is the object of wide-spread and 
well-deserved admiration. It is, of course, like other human 
institutions, not perfect. In reality, the British themselves 
would be the last to claim perfection for it. A single indication 
of this is the frequency with which studies of the Civil Service 
are made with a view to the realization of improvement. So 
also, there is easily discernible a readiness to introduce change 
where it appears calculated to increase the genuine efficiency of 
the administration of public affairs. At aH events, a high stand- 
ard is maintained. Government service appeals to individuals 
of ability and ambition. Such individuals feel this appeal in 
spite of the fact that the established rates of remuneration, 
while by no means niggardly, are not so great as successful 
persons may command in commerce and business. English 
Civil Servants may, and apparently do, feel that compensations 
exist in the form of a career offering permanency of position, 
advancement on the basis of merit, freedom from the worst 
evils of patronage, work involving the satisfaction of public 
service, and genuine prestige. Such a career and such advan- 
tages of public life are open to the able English civil servant on 
the single condition that, in general, he abstain from active par- 
ticipation in practical politics. Such abstention is regulated partly 
by law and partly by convention. By statutory provisions, civil 



144 THE CENTRAL GOVERNMENT 

servants are prohibited from having seats in Parliament; and, 
by i regulation of the Treasury, a civil servant with ambition to 
enter* the House of Commons would be forced to resign upon 
becoming a candidate. Civil servants are not now, as some of 
them once were, deprived of the suffrage; but political activity 
more positive than the mere casting of a ballot, such for example 
as canvassing, speaking, serving on committees, and the like, is, 
though exceptions can apparently be found to every rule in- 
volved, contrary to rules or tradition. This situation is some- 
times criticized; but what seems to continue the prevailing view 
.s that demand of abstention is defensible on the practical 
ground of efficiency. 

The character of English Civil Service examinations is fre- 
quently commented upon. In particular, the fact that the aim 
is to test the general capacity of a candidate, rather than; as in 
the United States, to ascertain his fitness for a special position, 
is undoubtedly a matter of considerable interest. The principle 
involved is an arresting one in respect of educational theory, 
national psychology, or even philosophy in general. It is, in 
any event, c possibly the most important single principle at the 
basis of the English Civil Service. However that may be, the 
English system seems to be committed to the view that a per- 
son of outstanding scholastic distinction can without difficulty 
acquire the special competency required by a partkular position. 
The English view appears to accept what is sometimes called 
an aristocratic emphasis, as against the attitude that closely asso- 
ciates excellence and specific function. It denies, at least by im- 
plication, the dictum that a person cannot be just good, but 
must be good for something. With respect to the whole ques- 
tion and to the contrast involved, it is easy enough to conclude 
with the Colourless reflection that something may be said foi 
both sides and that what may be good in one time or place ij 
not necessarily good in another. At the same 'time, reasor 
finds it difficult to escape the conclusion that genuine scholar 
ship and real culture can much more easily acquire special fit 
ness than special fitness can add to itself the other qualities; 
and, from a practical point of view, English experience and th< 
success of the English Civil Service cannot be ignored. Then 



;THE REAL EXECUTIVE 145 

:an be very little doubt but that, if England had to establish 
ts system again today in what are indubitably different condi- 
ions, it would insist on open competition and the search for 
general ability. 

The question of relationship between the Policy Forming 
Executive and the Routine Executive, between the political 
lead of a Department and the non-political agents who work 
inder him, between the minister and the civil servant, has been 
:he subject of numerous disquisitions. Perhaps the best simple 
statement of the basic principle involved or, at least, supposed 
o be involved continues to be that of Sir George CornewalJ 
Lewis. It is quoted by Bagehot and has been many times re 
Deated. "It is not thej^isingss Q f a Cabinet Minister to work 
his department^ His business^ js_to_see^ that it is jproperh 
^rkedL" Or, as Mr. Ramsay MacDonald said of the Cabinet 
*I^doesjmo^ 

n certain directions." It is, of course, the civil servants whc 
ivorkrtftfc" Departments and keep them going. 

An account of the characteristics distinguishing minister* 
from civil servants in England involves a series of contrasts 
In terms of what is perhaps the most frequently employed anti 
thesis, the minister is an amateur, the civil servant is a profes 
sional. The minister is not expected to have and, in the over 
whelming majority of cases, has not any detailed technica 
knowledge of matters falling within the purview of the De 
partment with which he is connected. According to a striking 
account, the Chancellor of the Exchequer, arbiter of the finan 
cial destiny of the country, may be at a loss to account foi 
"the dots" involved in the decimal system in which Treasun 
accounts are worked out. 1 The qualities that have enabled ; 
minister to become a leader of the majority party in the Hous( 
of Commons are less specific. He is in some manner a mai 
of the world. He is, if a minister of note, a man of consider 
able common sense. He has that somewhat intangible, but noA 
the less real, quality known as business ability. He possesse 

1 Cf. in this respect, Sidney Low, The Governance of England (R 
vised ed., London, 1914), Ch. XI. 



146 THE CENTRAL GOVERNMENT 

the faculty of directing affairs, of successfully getting other men 
to work for him. In fine, he is a layman of executive ability. 
The civil servant, on the other hand, furnishes the expert 
knowledge that the minister is not expected to possess. Though 
the examination by which he is chosen is not so much calculated 
to secure a professional as a person of general intellectual at- 
tainments, the civil servant is chosen when very young ; and he 
begins early on a special training. His permanence of tenure 
ensures that he will become the depository of much detailed, 
technical information. On this store of knowledge the minister 
draws in making his decisions. 

The extent to which the minister is dependent on, or even at 
the mercy of, the permanent officials is a much discussed ques- 
tion. General conclusions in the matter seem extremely diffi- 
cult, if not impossible, to draw with any confidence. Cases 
appear greatly to differ. There can be little doubt but that, 
in general^ the civil servants are, from the nature of things, in 
a position to exercise on public affairs an influence of consider- 
able proportions. The policies and ideas of the minister are 
likely to be general and even vague; so that their formulation 
and realization are dependent upon a knowledge of difficulties 
and upon a store of facts and experience that are in the pos- 
session of the permanent official alone. For example, it could 
be imagined that a minister might entertain the policy of estab- 
lishing a higher age limit at which children would leave school. 
Permanent officials, it might be supposed, would call to the 
attention of the minister such things as the number of children 
between the new and old age limits who would be affected, the 
likelihood of increase or decrease in this number with the pass- 
ing of time, the number of new teachers and of new schools 
and equipment that would be required in the present and future, 
and so on. The civil servant might altogether conceivably 
throw doubts on the workability of the plan involved. Indeed, 
it would be his duty to do so. On the other hand, if indica- 
tions of opposition to the minister's policy should appear, it 
might not be easily possible to say -either that it was a case 
of perfectly legitimate suggestion of objection or that it in- 



THE REAL EXECUTIVE 147 

volved. disloyal desire and effort to defeat the policy of the 
minister. 1 The permanent officials of a Department tend to 
establish a certain official point of view or bias; they appear to 
develop an excessive regard for formalism} and, being men 
often of greater ability than the minister^ they must inevitably 
acquire a certain impatience or even contempt for what may 
appear an ignorant and incompetent amateur. They work 
silently ; and, by quiet persistence, they are likely to get their 
way. If this way is a good way, it ought to prevail. In prac- 
tice, the minister will receive the credit j for the decision and the 
responsibility are his. At the same time, it might be difficult 
to prove that the decision was, in a truly positive sense, that of 
the minister. The question of personality is, in reality, prob- 
abJy the determining factor. If the minister is a man of great 
strength of character, he may adapt himself without great delay 
to the conditions existing in the Department in which he finds 
himself^ and he will rise above formalistic routine and may even 
fundamentally alter its traditional direction. There is, none the 
less, a definite, even if not objectionable, sense in which he will 
be dependent on the permanent officials. The distinction be- 
tween legitimate dependence and dangerous dependence of the 
minister on the civil servants is far from easy to draw. In 
any event, when the relationship becomes an undesirable one, 
it is a manifestation of an unfortunate tendency towards bu- 
reaucracy. 

Bureaucracy may be said to exist when the influence inherent 
in the position of permanent governmental officials reaches a 
point where, on the balance, it is, in practice, great enough both 
to determine in large measure the course of government and, 
at the same time, to escape reasonably effective control. 
Whether or not such a situation exists in- a particular case de- 
pends on prevailing conditions. The situation may have, and 
often has, developed at a given time only in sufficient degree to 
warrant the judgment that bureaucratic tendencies exist. The 
marked expansion of governmental activities that, in the last 

1 Lord Passfield (Sidney Webb) has testified to the loyalty and helpful- 
ness of the Ci' r il Service on the occasion when Labour first assumed office. 



148 THE CENTRAL GOVERNMENT 

century, has been perhaps the most salient feature of political 
history has inevitably increased the likelihood that bureaucratic 
tendencies Will manifest themselves. Such expansion .has, in 
Engknd as elsewhere, of necessity , resulted in considerable 
additions to the numbers of civil servants $ and this fact, to- 
gether with related developments, has lodged greatly aug- 
mented power in the hands of the permanent officials of the 
several government offices. 1 Not the least of the factors in 
this growth of pfower has been the practice on the part of 
Parliament of delegating broad subordinate law-making author- 
ity to the Executive Departments. There appears to be no 
fundamental reason for regarding an increase in the number 
and variety of government functions as being in itself a bad 
thing. In any event, it seems to be the work of destiny. There- 
fore, continued growth of the Civil Service in size and power 
is, even if undesirable, scarcely avoidable. This means, conse- 
quently, that bureaucratic tendencies will continue to appear. 
The conclusion seems simple. Inasmuch as a fully developed 
bureaucracy involves extensive power exempt from control, and 
as extensive power is inevitable, {hen, avoidance of bureaucracy 
involves maintenance of control. This is an exceedingly im- 
portant problem for a democracy. Former President Lowell 
suggested some years ago that, in England, danger of bureau- 
cracy had been escaped through the particular type of relation- 
ship between amateur and professional involved in the clear 
distinction of political from non-political agents. 2 It is ex- 
tremely doubtful whether, at the present time, this relationship 
is sufficient guaranty. The amateur minister, responsible to the 
people and to their representatives, is undoubtedly a demo- 
cratic element in the situation. If he is a strong personality, the 
popular interest will to that extent be protected against the 
danger of bureaucracy. However, the matter is not in reality 
so simple. Not only is the danger greater if the minister is a 
less strong onej but a certain tendency for a strong Cabinet to 
escape effective control by the House of Commons helps to 
increase the strength, and consequently the irresponsibility, of 

1 Cf. Ch: XV, p. 246, infra. 
* Cf. of. /.,' Vol. I, Ch. VIII. 



THE REAL EXECUTIVE 149 

any Department and its agents. In the long run, a democratic 
solution of the problem of genuine direction, useful criticism, 
and efficacious control, if it is to be worked out, must be found 
by those who have the ultimate power. In other words, the 
final responsibility rests upon the House of Commons. 



SECTION 2. THE LEGISLATURE 

CHAPTER XI 
THE STRUCTURE OF PARLIAMENT 

The many years that have elapsed since the English Parlia 
ment in the fourteenth century assumed definitely its bicameral 
form have witnessed numerous strains in the relationship 
between the House of Lords and the House of Commons. In 
more recent years, the position of the House of Lords hajs 
become in a definite sense inferior to that of the House of 
Commons. 1 Indeed, in some ways. Parliament may, for prac- 
tical purposes, be considered a unicameral assembly. Never- 
theless, the Mother of Parliaments continues to consist of two 
Houses, oile of which has existed almost since time out of mind 
and both of which have had an autonomous existence since the 
fourteenth century. The fact that the independent existence of 
the two Houses was originally unplanned has not prevented, in 
the year that have intervened, the formulation of numerous 
reasons justifying and supporting the principle of a bicameral 
legislature. Partly as a ' result of this reasoning and partly 
through the force of imitation, employment of two-chamber 
assemblies has made its way round the world. The practice 
has found its way into most civilized countries and sometimes 
into the most remote and unimposing communities of a particu- 
lar country. Always, the influence has been directly or indi- 
rectly that of the English Parliament. 

Outside England, in many of the bicameral assemblies that 
have been erected, both of the houses involved are based on the 
reprejentative principle, often with only minor differences ex- 
isting between what are called the "upper" and "lower" houses. 

*Ct. Ch. XIII, p. 212, injra. 

150 



THE STRUCTURE OF PARLIAMENT 151 

This causes a somewhat natural tendency for' some persons to 
think of the House of Lords as a representative body. In 
reality, the tendency suggests a good deal of caution. Though, 
as a matter of fact, the representative principle was, as will be 
seen in a moment, in minor degree introduced into the House 
of Lords at the time both of the union with Scotland (1707) 
and of that with Ireland ( 1 800), the House is to an overwhelm- 
ing extent a primary assembly. Its members, it is true, may 
often be in a striking way representative of the country in a 
derived sense 5 but, in the more literal sense, a great majority 
of them represent nobody but themselves. 

I. COMPOSITION 

The House of Lords consists of approximately seven hun- 
dred members. The size varies for several reasons. New 
peerages are from time to time created by the CrownJ and 
others at times disappear. Incidentally, a peerage, being in 
principle based on noble blood, cannot be declined or resigned. 
The appearance of a new peerage or the disappearance of an 
old one is likely to affect the size of the House, though it will 
not necessarily do so; for not all peers are members of the 
House of Lords. For example, women, even though peers 
in their own right, are not entitled to sit in the House; and 
male peers who have not reached their majority are temporarily 
excluded. 

Members of the House of Lords may be classified in nu- 
merous ways. These classifications naturally cut across one 
another to some extent. 

One classification of members of the House of Lords, which 
is of an historical character and which is reproduced in such 
formal terminology as the enacting clause of statutes, involves. 
a division into "Lords Spiritual and Temporal." This is nu- 
merically a very unequal division. Out of the approximately 
seven hundred members of the House of Lords, only twenty- 
six are Spiritual Lords. 

The members of the House of Lords who are designated 
"Lords Soiritual" are Bishops of the established Church of 



JJ2 THE CENTRAL GOVERNMENT 

England. Five of them are always the same, that is to say, 
they are always replaced in the House by their successors. 
These are the two Archbishops, the Archbishop of Canterbury 
and the Archbishop of York, and the Bishops of London, Dur- 
ham, and Winchester. The remaining twenty-one Bishops who 
have seats in the House of Lords, are determined by seniority. 
Like the other five spiritual members of the House of Lords, 
they remain members as long as they retain their positions. 
However, upon their death or resignation, their places in the 
House, 'because of the principle of seniority, are not t^ken by 
their successors. ^ 

The Lords Spiritual are from the nature of the case non- 
hereditary. This characteristic they share with seven of the 
Lords Temporal, namely, the Lords of Appeal in Ordinary. 
These Lords of Appeal, being appointed because of their learn- 
ing in the law, are, likewise from the nature of the case, non- 
hereditary. They must havfe served at least two years in high 
judicial position or have practised at the bar for at least fifteen 
years. Upon them almost entirely devolves the task of per- 
forming** the judicial business of the House of Lords. 1 The 
two small groups of nqn-hereditary peers, which have nothing 
else in common, are, taken together, to be contrasted with the 
hereditary peers. 

The overwhelming majority of the Lords Temporal are 
holders of hereditary peerages. In general, peerages created 
before 1707, the date of the Union with Scotland, are Peer- 
ages of England. Those created in the eighteenth century, 
that is to say, between 1707 and the Union with Ireland in 
1800, are Peerages of Great Britain. Peerages created since 
1 800 are Peerages of the United Kingdom. Adult holders of 
any of these peerages are, with a few exceptions, members of 
the House of Lords. Hereditary peerages of Scotland and of 
Ireland likewise exist. However, their holders are in only a 
few cases members of the House of Lords. It is in respect of 
them that the representative principle has been introduced into 
the composition of the House of Lords. 

At the time of the Union with Scotland in 1707, the arrange- 

1 Cf. Ch. XV, p. 232, infra. 



THE STRUCTURE OF PARLIAMENT 

ment made was that no new Scottish Peerages would be created 
and that those peers in existence at a given time should choose 
sixteen of their number to represent them in the House of 
Lords. These Representative Scottish Peers were to be chosen 
for the duration of a Parliament. The number of Scottish 
Peers is apparently now less* than ninety. When the Union 
with Ireland was established in 1800, a somewhat different 
arrangement was made. The number of Irish Peerages was to 
be allowed to decrease to one hundred, at which point it was 
to be maintained. Furthermore, the body of Irish Peers was 
to select twenty-eight life members of the House of Lords, the 
Peers thus being required to elect only when a vacancy should 
occur amongst their representatives. The Irish Lords other 
than the Representative Peers were made eligible to be elected 
to the House of Commons from a constituency outside Ireland. 
No steps, it would seem, to carry out the several arrangements 
with respect to the Irish Peerages have been taken since the 
establishment of the Irish Free State. 

With respect to all peerages, several ranks exist. Their 
holders are, in descending order, dukes, marquesses, earls, vis- 
counts, and barons. 1 The Lords of Appeal in Ordinary rank as 
barons. The Lords Spiritual, who are, strictly speaking, not 
peers, possess a rank, with respect to precedence, immediately 
above barons. 

Various proposals have from time to time been made with 
a view to altering the composition of the House of Lords. 
There can be little doubt but that many of its members are 
very little competent in public affairs. However, these persons 
help to solve the problem by the simple expedient of not at- 
tending. The problem of reform in composition is inextricably 
connected with the matter of the powers and functions of the 
House of Lords. 2 Though the whole problem may in some 
uncertain future receive close attention and find a suitable solu- 
tion, it cannot now be said to be the object of any widespread 
and persistent movejnent. 

1 This is exclusive of the Princes of the Royal Blood, who possess the 
highest rank of all. v 

2 Cf. Ch. XIII, p. 217, infra. 



154 THJE CENTRAL GOVERNMENT 

The House of Commons is at the present time composed of 
615 members. This relatively large number, established by Act 
of Parliament, has been in the past even larger, actually exceed- 
ing 700 between the years 1918 and 192-2. It was reduced to 
its present size as the result of the disappearance of members 
from Southern Ireland at the time of the establishment of the 
Irish Free State. Of the present 615 members, 492, or nearly 
five-sixths, are English representatives. The remainder is made 
up of 36 for Wales and Monmouth, 74 for Scotland, and 13 
for Northern Ireland. 



The House of Lords, being the direct descendant of' the 
Curia Regis, is in principle a permanent council of the King. 
The length of the term of a Parliament is determined by the 
term of the House of Commons. According to statutory pro- 
vision, the members of the House of Commons are chosen 
for five years. However, this provision is relatively unim- 
portant for at least two reasons. The first and most important 
is that, in practice, the life of a particular House of Commons 
is often brought to an end by dissolution before the end of the 
statutory period of five years. Since dissolution may talce place 
at any time, the actual life of a Parliament is uncertain. How- 
ever, if the existence of a compact majority in the House of 
Commons may be considered the normal situation, the tendency 
for a Parliament to live out a term of approximately five years 
may, perhaps, likewise be regarded as normal. In the second 
place, the five year period being established by statute, it may 
be changed in the same way. This is a simple illustration of 
the way in which, the power of Parliament is without legal limit. 
Indeed, the very Parliament that by the Parliament Act of 191 1 
established the term of five years prolonged its own life beyond 
that period. Any other Parliament could legally and, with the 
support of public opinion, might in practice do the same thing. 
The matter, it may l>e noted, is one in which the legal power 
of the House of Lords is completely coordinate with that of the 
House of Commons. 1 



THE STRUCTURE OF PARLIAMENT 155 

The House of Commons is integrally renewed. No senti- 
ment for partial renewal seems ever to have existed. Indeed, 
since dissolution is a relatively common practice, no little com- 
plication would attend an attempt to choose fractions of the 
House at different intervals. On the other hand, the election 
of all members throughout the country at the same time* is a 
valuable means of ascertaining the attitude of public opinion 
on definite issues. When vacancies in the membership of the 
House occur on account of death or other cause, what are known 
as bye-elections take place. These special elections are like- 
wise interesting opportunities to test the trends of public opinion 
during the interval between general elections. A curious his- 
torical survival is the fact that technically a member of the 
House of Commons cannot resign. When a member wishes 
to accomplish the same purpose, he is usually said "to take the 
Chiltern Hundreds." This means that he asks to be and is 
appointed to a position under the Crown the holding of which 
is incompatible with membership in the House of Commons. 
His appointment causes the severance of his connection with the 
House; and, since the position concerned involves no duties and 
no remuneration, he immediately resigns from it. 

Qualifications for membership in the House of Commons are 
exceedingly simple. In order to be eligible, a person must be 
a British citizen and of legal age. Interestingly enough, neither 
Law nor Convention has established any residence requirement. 
In practice, persons may be and .frequently are chosen in regions 
remote from their homes. The advantages of this practice, 
which may well be envied in some other countries, are simple 
and manifest. Some of these advantages are that a broad na- 
tional, rather than a local, point of view tends to prevail, that 
the country need not be penalized if several excellent poten- 
tial members are resident in the same vicinity, that the country 
need not be deprived of the service of a valuable representa- 
tive merely because he dwells in a neighbourhood where a 
political party other than his own normally is in the majority, 
and GO on. 

A few simple disqualifications also exist. Examples are to 



156 THE CENTRAL GOVERNMENT 

be found in provisions that render ineligible clergymen of the 
Churches of England, Scotland, and Rome, bankrupts, and in- 
sane persons. Peers 1 and persons who hold certain kinds of 
positions, such for example as judges and army officers, are 
likewise not eligible. Holdejs of some other kinds of positions, 
though not ineligible for election, must, in order to become 
members of the House of Commons, relinquish their former 
position. This is sometimes called incompatibility as distin- 
guished from ineligibility. Members of the Civil Servide are 
good examples. An Order in Council requires them to resign 
upon announcing their candidacy. The obverse of this irule also 
holds. A member of the House of Commons who accepts one 
of several kinds of positions, such for example as a commission 
in the army or navy or a judgeship, severs thereby his con- 
nection with the House. It is, of course, this principle that 
lies at the basis of the practice of "taking the Chiltern Hun- 
dreds." Moreover, the principle possesses important historical 
interest in connection with Ministers of the Crown. The pro- 
visions of the Act of Settlement in 1701 that would have made 
Parliamentary Government practically impossible 2 were, after 
their repeal, supplanted by provisions requiring members of the 
House of Commons who accepted positions as Ministers to seek 
reelection. Such provisions, after undergoing certain modifi- 
cations, have recently disappeared. Membership in the House 
is now not affected by appointment to the Ministry. 

It appears well established that the House of Commons can- 
not, as sometimes happens in the United States, add in effect 
to the legal qualifications of members-elect by refusing to seat 
them on the grounds of alleged unfitness of a general or specific 
character. However, a member can be expelled, though this 
expedient is rarely employed in practice. 

Elections to the House of Commons are decided, as a gen- 
eral rule, by plusalilty vote in single-member constituencies. 
A constituency is defined by the Representation of the People 

1 With the exception mentioned in connection with Irish Representative 
Peers. 

2 V., Ch. IX, p. 126, supra. 



THE STRUCTURE OF PARLIAMENT 157 

Act of 1918 as "any county, borough, or combination of places, 
or university or combination of universities, returning a mem- 
ber to serve in Parliament." Of the 615 members, 576 are 
chosen in constituencies entitled to elect one representative. 
Thirty-six members are elected from eighteen two-member con- 
stituencies; and the remaining three are chosen from the only 
three-member constituency, that formed by the Scottish Uni- 
versities. 

The territorial constituencies, that is to say, the constituencies 
other than the Universities, continue to be distinguished as 
County and Borough constituencies, though the distinction is at 
present of no practical importance. The members chosen from 
County constituencies number 300, those from Borough con- 
stituencies 303. The remaining twelve are the University 
members. 1 

The single-member constituencies contain approximately an 
equal number of inhabitants. Readjustments are not made at 
regular intervals, as they tend to be in the United States, but 
are undertaken when conditions seem to demand a change. Ap- 
parently, no complaint can be made on the score of "gerry- 
mandering." The last redistribution of seats was made in 1922, 
The work of determining the constituencies is performed by 
an impartial committee, and the results are attached as an ap- 
pendix to an Act of Parliament. 

The approximate equality of constituencies in England today 
is the resultant of an important historical development. Before 
the Reform Bill of 1832, great inequalities existed, particularly 
in connection with the Boroughs. The situation was the result 
of the general principle according to which Counties and 
Boroughs were allotted two members each in the House of 
Commons. In the case of urban representation, classic examples 
existed of "rotten 1 " and "pocket" Boroughs. Rotten Boroughs 
could be found, for example, that were, through destruction, 
desertion, or even inundation, without inhabit^its. Such 
Boroughs, nevertheless, continued to be entitled to two mem- 

1 These are, in addition to the 3 for the Scottish Universities, as follows: 
Oxford 2, Cambridge 2, London I, English Provincial 2, Wales I, 
Queen's College, Belfast, I. 



158 THE CENTRAL GOVERNMENT 

bers in Parliament.- The same was true of Pocket Boroughs, 
which were contained within the confines of the property of a 
great land-owner.. These Boroughs, likewise, being allotted 
two members of the House of Commons, the result was that, 
for all practical purposes, nomination of the members by the 
land-holder prevailed. This situation, of course, meant that 
flourishing Boroughs, with the same membership, were rela- 
tively much under-represented. Still greater injustice existed 
in the case of great urban communities that had grown up as 
a result of the extensive use of machinery and factories and 
that were entitled, as communities, to no representatives at all. 
The Reform Bill of 1832 took important steps looking towards 
the remedy of the situation; the Representation of the People 
Act of 1867 made further redistribution; and an Act of 1885, 
passed subsequent to the Representation of the People Act of 
1884, established a still more equitable arrangement. In the 
twentieth century, the principle of equal constituencies has been 
for the most part realized in practice. 

The general principle of plurality election, followed in Eng- 
land as in the United States, is 1vell known to present the pos- 
sibility, which is not infrequently experienced in practice, that 
the will of the people will not be mathematically reflected in a 
representative body. This is even true of a country where two 
parties predominate and where, consequently, only two candi- 
dates normally present themselves in single-member constituen- 
cies or only two lists of candidates in multiple-member con- 
stituencies. If, as in England, the national rather than the local 
point of view tends to be stressed, then nothing is more natural 
than for statistics to be generalized and viewed in the perspec- 
tive of the country as a whole, or of a large part of it, rather 
than in terms of small air-tight compartments, that is to say, 
electoral districts. Hence, since a large majority in one con- 
stituency may more than offset smaller majorities in two or 
more othei*constituencies, the result may be, and frequently is, 
that from the point of view of three or more districts, and thus 
even of the whole country, a minority of the voters may elect 
a majority of the members. This possibility is even greater in 
constituencies where more than two candidates are involved; for, 



THE STRUCTURE OF PARLIAMENT 159 

in this case, a minority of voters may, in any one constituency, 
elect the representative. Thus, in Great Britain, the last three 
general elections showed the following results: * 

CONSERVATIVE 
1929 1931 1935 

Popular vote 8,658,729 11,907,875 10,488,626 

Percentage of whole 38.8 56.1 48 . 5 

Number of seats. . / 260 471 387 

Percentage of seats 42 . 9 77 . 5 63 . 8 

LABOUR 

1929 I93i 1935 

Popular vote 8,379,978 6,990,503 8,804,588 

Percentage of whole 37-6 33 40.8 

Number of seats 288 65 166 

Percentage of seats 47.5 10.7 27.3 

LIBERAL 

1929 1931 1935 

Popular vote 5,301,127 2,320,310 2,309,736 

Percentage of whole 2 3-6 10.9 10.7 

Number of seats 59 72 54 

Percentage of seats 9.6 11.8 8.9 

The natural tendency to consider the results of plurality elec- 
tion unsatisfactory has given a certain amount of strength to 
movements in favour of some kind of electoral reform. In 
1931, a Representation of the People Act, which was passed 
in the House of Commons but not pressed after its failure in 
the House of Lords, provided for a system of preferential 
voting, known as that of the Alternative Vote. If no candidate 
should receive a majority of the votes cast, the lowest candi- 
date was to be dropped and the votes of that candidate dis- 
tributed amongst the other candidates according to the prefer- 
ences expressed. This method would prevent the under-repre- 
sentation of a majority, but it would not ensure, as would a 
system of proportional representation, certain representation of 
a minority. Proportional representation is employed in the 
case of such British University constituencies as are 'entitled to 

1 Where Labour and Liberal strength weije divided between two or more 
groups, the. latter have been combined for purposes of convenience. _ 



l60 THE CENTRAL GOVERNMENT 

more than one member. The Representation of the People 
Act of 1918 recommended that arrangements be subsequently 
made so that, as an experiment, one hundred members of the 
IJouse of Commons should be chosen by a system of propor- 
tional representation. This recommendation has never been 
earned out. 

Proportional representation continues to command a certain 
amount of respectable support in England. However, the exist- 
ing system is so well entrenched in the traditional sentiment and 
practice of the country that it is not likely easily to be dislodged. 
The two principal arguments advanced by supporters of pro- 
portional representation are the two unanswerable propositions 
that, in the first place, various mathematical anomalies can and 
do occur under the present system and that, in the second place, 
any one of several systems would render these results impos- 
sible. Supporters not unnaturally draw the conclusion that 
proportional representation ought to be accepted. Intelligent 
opponents of proportional representation would seem to do well 
to accept the premises of its advocates and to deny that the con- 
clusion follows from the premises. In this way, the whole 
matter may be reduced to the fundamental issue of the nature 
of representation and of the majority principle in representative 
government. This issue is by no means easy to resolve. On the 
one hand, a school of opinion appears to exist which holds that 
a representative should reflect as accurately as may be the pre- 
vailing sentiment of those whom he represents. To another 
school this "mirror" concept of representation leads logically 
to mandatory attitudes and votes on the part of a representa- 
tive, who, they are inclined to suggest, becomes a sort of mes- 
senger-boy. In the view of this second school, a representative 
should not so much reflect prevailing wishes and desires as to 
"represent" in a wider sense the "best judgment," as Burke once 
said, of his constituents. Each of these views would appear, 
if pushed to an extreme, to present certain difficulties of both 
theory and practice; and between them any number of positions 
may be held involving varying proportions of both views. At 
all events, this seems to be the basis of disagreement between 
advocates and opponents of proportional representation. 



THE STRUCTURE OF PARLIAMENT l6l 

The English parliamentary electorate includes those persons 
who possess the requisite legal qualifications for voting in. na- 
tional, as distinguished from local, elections, provided that their 
names appear on the national register in a given constituency. 
This, of course, concerns, for all practical purposes, only the 
House of Commons. Perhaps, in a literal sense, the Repre- 
sentative Peers may be said to involve an electorate; but even 
this inconsequential exception is modified by the fact that Ire- 
land is no longer involved and that a Scottish peerage, if no 
vote has been given in connection with it since 1 800, is stricken 
from the roll. 

The voters are informed, through the newspapers and other 
organs of publicity, of an impending general election of mem- 
bers of the House of Commons. The first intimation in the 
matter is to be found in the general political situation. A sub- 
sequent and more definite indication is an announcement by the 
Government of the day. ,If the interval between these two 
sources of information is not great, the Government is said, with 
bitter complaint by the Opposition, to "spring" the election on 
the country. Finally, a formal proclamation by the Crown 
announces the dissolution of the existing House of Commons 
and the election of its successor. 

Election Day, which is in reality nomination day, is always 
fixed as the ninth day after the royal proclamation. On that 
day, the returning officers, the Mayors of the Boroughs and the 
Sheriffs in the Counties, or their representatives, are present at 
designated places for the purpose of receiving nominations. The 
candidates appear with their supporters. According to law, a 
candidate, in order to be nominated, must be put forward by a 
mover, a seconder, and eight other persons. This simple ar- 
rangement would seem to lend itself to the appearance of large 
numbers of contestants; but, in practice, this does not occur, 
partly because of the existence of the political parties and knowl- 
edge that only the candidate of a party can normally hope to 
be successful and partly by a simple and effective, if logically 
somewhat undemocratic, provision which requires a candidate 
to make a cash deposit of, 150, the sum being returned to him 
or forfeited depending on whether or not he polls as many as 



l62 THE CENTRAL GOVERNMENT 

one-eighth of the votes cast. The returning officer is in theory 
supposed to elect a member of the House of Commons on 
Election Day 5 and if, as happens in a certain number of in- 
stances, only one candidate presents himself, the officer is able 
to do so. He proclaims the election of the single candidate, 
who is said to be "returned unopposed." On the other hand, 
if, as is the more visual case, two or more candidates are duly 
nominated, the returning officer professes himself to be unable 
to elect until a poll has been held. Such polling takes place 
eight days later 5 and, in reality, the election of the great ma- 
jority of the members of the House of Commons takes place 
on that day. Except for University polling, this day is now 
the same throughout the country, though formerly polling ex- 
tended over a considerable period of time. 

Meanwhile, the more practical aspects of the electoral cam- 
paign will have been developing. The campaign takes all the 
forms that elections throughout the world have made familiar. 
Discussions in the press, announcements of candidacy, public 
meetings, speeches, parades, and the like appear on a wide scale. 
Latterly/ broadcasting appears to play an increasingly important 
role. A particularly characteristic English practice seems to 
take the form of door-to-door canvassing by the supporters of 
the several candidates. Canvassing is said to be a fine art, with 
the result that, in practice, willing workers may well do their 
candidate more harm than good. At the base of the whole 
electoral procedure is, of course, the existence of the political 
parties with their organization. Moreover, behind them and 
the conventional principles and practices that have developed in 
connection with them, certain provisions of law are by no means 
unimportant. Of especial interest are legal stipulations that 
deal with what are called "corrupt practices" and "prohibited 
practices." In the first of these categories fall activities com- 
monly regarded as wrong in themselves, such, for example, as 
bribery and intimidation. Prohibited practices, on the other 
hand, consist of activities that are not generally regarded as of 
themselves immoral, that may within reasonable limits be prac- 
tised, that are, however, regulated in the public interest. Cam- 
paign expenditures *and related matters are examples that come 



TH^E STRUCTURE OF PARLIAMENT 163 

readily to mind. The situation in England with respect to 
these things, 1 solution of which on democratic principles is far 
from easy in modern conditions, appears, relatively speaking, 
to be highly satisfactory. 

The day on which polling takes place throughout the country 
is, in general, marked by much activity and excitement. How- 
ever, on the whole, it normally passes without any considerable 
number of untoward events in the orderly life of the country. 
Balloting is, in accordance with law, conducted in a quietly 
supervised and efficiently impartial manner. The ballot itself 
is simple. No other elections are held simultaneously with 
national election^; the number of candidates is regularly small; 
and no "long ballot" can develop. When the polling-places 
have been closed, the votes are apparently counted quickly and 
expertly. Announcement of the result is made; and traditions 
of fair-play and sportsmanship are afforded an opportunity to 
display themselves in the form of hand-shaking, congratulations, 
and the like. A recount of the votes is possible in accordance 
with legal provisions. The final result of the election may 
also be disputed. 

Decision in the case of disputed elections was historically 
claimed as a privilege by the House of Commons. Its claim 
was technically somewhat doubtful; but the House asserted the 
claim in its contest with the Tudors, and, by maintaining it 
during the struggle between the King and Parliament in the 
seventeenth century, the Commons established in practice their 
assertion. However, when the practical paramountcy of Par- 
liament had become a recognized fact, there was no real reason 
why the privilege should be asserted. In reality, what had 
been a weapon in the contest with the King, turned out to be, 
as has happened in the United States and apparently in other 
democratic countries where the exercise of the privilege still 
exists, an advantageous instrument in partisan politics. Experi- 
ence shows that, in these conditions, disputed elections are, with 
few exceptions, decided in favour of the majority party. In 

1 1fhus, for example, at present a candidate is limited to the expenditure 
of sixpence for each voter in Counties and fivepence for each voter in 
Boroughs. 



I&4 THE CENTRAL GOVERNMENT 

England, this state of affairs caused several attempts to be made 
with a view to remedying the situation 5 and, finally, the present 
arrangement was adopted in 1868, whereby disputed elections 
are determined by the High Court of Justice. 

The individuals who compose Parliament are rendered in 
some degree independent by provisions of various kinds. Many- 
of these are of historical interest and represent privileges 
claimed by Parliament, especially in the contest with the royal 
power. An example is to be seen in a thing like the freedom 
of members from arrest for a period of forty days before and 
after a session of Parliament. Another example is the freedom 
of speech in debate, in the sense that no member may be held 
responsible in any other place for words uttered in Parliament. 
In present conditions, these privileges are of only minor im- 
portance - y but tendencies towards absolute or irresponsible power 
might raise them again to the position of genuine bulwarks of 
liberty. A somewhat different example consists in provisions 
that establish payment for members "of the Hou$e of Com- 
mons. T^his practice, which, established in 1911 out of defer- 
ence to egalitarian principles, is supposed to level in some degree 
the difference between rich and poor, could scarcely be abolished 
at the present time 5 but considerable doubt exists whether it 
goes far towards accomplishing its purpose. 1 

2. ORGANIZATION 

When the composition of Parliament has been determined, 
the Houses are ready to meet, to organize themselves, and to 
proceed to business. A proclamation of the Crown that dissolves 
Parliament provides for the beginning of a new Parliament. 
When Parliament subsequently meets, it meets for its first ses- 
sion. A session of Parliament is brought to an end by proro- 
gation, at which tirne the beginning of the next session is 
determined. 2 The effect of prorogation is to bring all pend- 
ing business to a close. Either of the two Houses may, without 
such effect, adjourn for such period as it sees fit. 

a The annual salary was increased in 1937 from 400 to 600. 
8 Dissolution may subsequently intervene. 



THE STRUCTURE OF PARLIAMENT 165 

Parliament is prorogued, as it is dissolved, by the Crown. 
This, of course, means that a Parliament or one of its sessions 
comes to an end through decision of the Government of the 
day. The King, however, frequently takes a personal part in 
the formalities involved, more especially in the reading of the 
Speech from the Throne at the opening of a session. 

Since Parliament meets only when summoned by the Crown, 
its sessions are theoretically dependent on the will of the Crown. 
In practice, there are, of course, annual sessions. The regular 
session normally begins in February and runs until August. 
There is also usually an autumn session. Historically, the 
Crown succeeded on occasion in going for long periods without 
summoning Parliament. However, Parliament finally settled 
the matter, not by enacting law stipulating for annual sessions, 
but by establishing the practice of enacting certain indispensable 
legislation for only a year at a time. Hence, unless Parliament 
is summoned annually, the lapsing of certain acts would prove 
disastrous. For example, the Army would legally disappear. 
The only l^gal provisions that apply to the summoning of Par- 
liament are apparently those contained in an Act from the reign 
of William and Mary which require that Parliament shall be 
summoned not later than three years after it is dissolved. These 
provisions are clearly of no practical importance at present. 

The organization of Parliament and the activities of Parlia- 
ment connected with the accomplishment of the work that it has 
to perform are dependent in a very definite way on the rules oi 
parliamentary procedure. The rules were developed in Eng- 
land in the course of centuries; and their several principles have 
greatly influenced the method of proceeding of assembled 
groups in all countries, varying from national legislatures to 
school debating societies. The present rules of the Houses oi 
Parliament are partly "unwritten," being largely based on pre- 
cedent, and partly written. The written rules, which are in- 
complete and somewhat uncoordinated, are known as Standing 
Orders. All rules are regarded as remaining in force until 
changed. There is, therefore, no occasion for them to be re 
adopted j and this is the basis for a difference, though one p^rac 
tically of little importance, between English rules and the Rule. 



l66 THE CENTRAL GOVERNMENT 

of the American House of Representatives, which must be for- 
mally adopted at the beginning of each Congress. In all 
countries and this is particularly true of England the import- 
ance of legislative rules of procedure can scarcely be over-esti- 
mated. Some of the most important institutional arrangements, 
and consequently important aspects of the real way in which 
people are governed, are regulated simply by such rules. 

One of the more important elements of parliamentary organ- 
ization is the body of officers in each of the two Houses. Of 
particular importance, of course, is the presiding officer. The 
Lord Chancellor, who presides in the House of Lords, is, of 
course, a political appointee with many duties, presidency of the 
House of Lords being ex officio. On the other hand, the pre- 
siding officer in the House of Commons, the Speaker, is chosen 
by the House, though, as the result of his historical position, he 
must be formally approved by the Crown. 

In practice, the identity of the Speaker of the House of Com- 
mon^is determined by the Government of the day. When he 
is chosei^ for the first time, he is commonly taken, after con- 
sultation between the parties with a view to a unanimous choice, 
from the majority in power in the House. Inasmuch as the 
practice has been established of reelecting a Speaker as long 
as he is willing to serve, change of the majority in the House 
regularly has no effect upon the position of the Speaker. He 
is, when first elected, supposed to lose, and does lose, all par- 
tisan characteristics. He becomes an impartial arbiter in the 
proceedings of the House. In this respect, he differs from the 
Lord Chancellor, who is a strong party man and who, unlike 
the Speaker of the House of Commons, makes speeches in 
debate. The Speaker votes only when there is an equal division 
in the vote of the House, and then in such a way, if possible, 
as to prolong the proceedings. He is normally reelected to the 
House, unopposed in his constituency. At the time of his re- 
tirement, he is usually elevated to the peerage. 

The umpire-like quality of the Speaker is the characteristic 
that most differentiates his position from that of the Speaker of 
the American House of Reoresentatives. The oartisan activi- 



THE STRUCTURE OF PARLIAMENT l6j 

ties which in the United States are performed by the Speaker 
are important in any country; but in England the existence of 
the parliamentary system of government involves a leadership 
on the part of the Prime Minister and the Cabinet that relieves 
the Speaker of the House of Commons of most of the party 
duties of the American Speaker. He assumes, it is true, a 
certain obligation to assist the Government of the day in its 
performance of the functions of governing; but this takes no 
partisan forfn, and the obligation remains the same when one 
Government has been supplanted by another. 

The choice at the beginning of each Parliament of the Speaker 
in the House of Commons is a simple but interesting example 
of the considerable amount of pageantry that continues in Par- 
liament from a bygone day. When a new Parliament meets, 
the House of Commons is, of course, without a presiding officer. 
Though his identity is determined beforehand, he must be for- 
mally selected. This is attended by an amusing bit of panto- 
mime. When the newly elected members of the House of 
Commons assemble in their chamber, the Clerk, in wig and 
gown, takes his position behind his table at the front of the 
House. He is conceived to be without power to speak; so he 
must proceed by signs. Private members have been selected 
in advance to nominate the candidate decided upon and to 
second the nomination. The Clerk successively designates these 
members by pointing his finger at them. Each, thus recognized, 
makes his appointed speech. When the nomination has been 
duly made and seconded, the Clerk is saved the embarrassment 
of having, without speaking, to put the question to a vote by 
the fact that the members carry the election by acclaim. Several 
members then undertake to conduct the Speaker to his place, 
but he pretends through modesty and anticipation of danger to 
be unwilling. Thus, the pantomime involves the scene of a 
newly chosen Speaker being hauled to the front in spite of 
himself. 

The Speaker, as presiding officer, is placed on a sort of throne 
raised above the Clerk's table. He is allotted spacious quarters 
in the Palace of Westminster, where even his guests at dinner 
are determined in accordance with his non-partisan character* 



l68 THE CENTRAL GOVERNMENT 

Daily sittings are preceded by a formal p'rocession of the Speaker 
to his position. 

Each of the Houses, of course, employs other officers than 
its presiding officer. Among the permanent officials, there 
are in the House of Lords, corresponding to the Clerk of the 
House of Commons and his assistants, the Clerk of Parliaments 
and his assistants. Other permanent officers include the ser- 
geants-at-arms and their assistants in both Houses and, in the 
House of Lords, the Gentleman Usher of the Black Rod. All 
are appointed by the Crown. 

% 

Legislative bodies can hope to accomplish but little, unless 
their organization includes smaller organized bodies within the 
larger. In Ehgland as elsewhere, these smaller organizations 
are in part informal and extra-legal growths and in part crea- 
tions of formal regulations. The most important examples are, 
on the one hand, political party organizations and, on the other, 
legislative committees. 

It is manifest that several hundred persons are, from the 
beginning,vsaved from being a completely amorphous aggre- 
gate, if practically all of them own alle'giance to one of several 
organized fraternities, such as the political parties are. In the 
British Parliament, the members who belong to a given party 
form, as has been seen, the parliamentary party. They from 
time to time hold conferences, which are manifestly analogous 
to what are called in America party caucuses. In the case of the 
usual majority, party leaders form the Ministry ; and the exist- 
ence of this organism is, of course, essential to the normal 
orderly working of Parliament and of the whole governmental 
system. The phenomenon of political parties is also at the basis 
of the existence of His Majesty's Opposition, a minority pos- 
sessed of a programme and of leaders who form a skeleton 
Ministry ready, if it can secure a majority, to undertake the 
governing of the country on the basis of its programme. Ac- 
cording to an often quoted dictum of Disraeli, the business of 
the Opposition is to oppose. 1 Though it is manifest that, in 

1 An interesting commentary on this situation is afforded by the fact 
that legislation introduced into Parliament in 1937 stipulated for a salary 

of 2.000 for the Leader of the Onoosition. 



THE STRUCTURE OF PARLIAMENT 169 

principle, decisions of a majority caucus could reduce the de- 
cisions of a legislative body to the category of purely formal 
approval and could, thus, reduce the authority of the minority 
to a nullity, this is, in English practice, far from the usual 
procedure. The spirit of fair play and various other consider- 
ations, including the existence of expedients suitable for obstruc- 
tion at the command of the Opposition, preclude complete dis- 
regard of the minority. ^ 

All parties employ whips, who are, in general, members re- 
sponsible for maintaining party discipline. Much depends on 
both the firmness and tact of these members. The majority 
Whips, who are the Government Whips and who hold as well 
positions in the Ministry, must act always with the conscious 
realization that failure*to keep the majority literally or figura- 
tively united may well prove the downfall of the Government. 

Committees in the English Parliament are of various kinds. 
The most important is the Committee of the Whole House. 
This designation, referring to a committee composed of all the 
members of one of the Houses, appears somewhat paradoxical in 
view of the fact that, in general, a committee is commonly re- 
garded as a smaller part of a larger whole. The Committee 
of the Whole House is merely the House sitting in less formal 
conditions than prevail at its regular meetings. Some of the 
formal rules, more especially that which prohibits a member 
from speaking twice to the same question until all others who 
desire to speak have had an opportunity to do so, are suspended; 
and the regular presiding officer is not in the chair. The Com- 
mittee of the Whole House in the House of Lords is presided 
over by the Lord Chairman of Committees , in the House of 
Commons, the presiding officer is the Chairman of the Com- 
mittee on Ways and Means, who also serves as Deputy Speaker. 
In the House of Commons, the Committee of the Whole House 
changes its name according to the business with which it deals, 
being also known as the Committee on Ways and Means and 
as the Committee on Supply. 1 

The Committee of the Whole House in the House of Com- 
mons had its origin and development in the period of struggle; 
between the King and Parliament in the sixteenth and seven- 



J70 THE CENTRAL GOVERNMENT 

teenth centuries. When small committees were in practice at 
that time set up for some purpose, experience with the difficul- 
ties of irregular attendance on the part of members a phe- 
nomenon familiar to everyone with any present day experience 
of committees resulted in a practice whereby members of the 
House other than those specially designated as members of the 
committee were encouraged to be present and take part in the 
proceedings of the % committees, in other words, to become 
members. Furthermore, in general, committees possessed the 
advantage of being able to meet away from the presence of 
the Speaker, who was, in greater or lesser degree, distrusted 
as a man acceptable to the King. As a rj suit, the absence of the 
Speaker from his chair during meetings of the Committee of 
the Whole House is easily explicable oft traditional grounds. 

Of considerable, and apparently growing, importance in the 
House of Commons are the Standing Committees. There are 
at present five of them, designated by letters except in the case 
of the Committee on Scottish Affairs, which is composed of 
all the members of the House representing Scottish constitu- 
encies. With the same exception, these committees are com- 
posed of from thirty to fifty members, to whom may be added, 
on the occasion of the consideration of a particular question, 
from ten to thirty-five specially qualified members. 1 In Eng- 
land, such standing committees are of recent origin. A single 
committee of this kind was set up in 1882 as an experiment ; 
and the number of Standing Committees was gradually in- 
creased until it reached its present size. 

The Houses set up from time to time certain select com- 
mittees for the purpose of undertaking special enquiries of one 
sort or another. There also exist sessional committees and other 
committees of a miscellaneous kind. Of especial importance 
and interest are private bills committees, which are small com- 
mittees of four or five members that play a principal part in 
the process by which private legislation is enacted. 

1 From I O to 15 may be so added in the case of the Scottish Committee. 
When a Standing Committe considers a measure that concerns Wales' and 
Monmouthshire, it must contain all the members from Wales and Mon- 
mouthshire. 



THE STRUCTURE OF PARLIAMENT 171 

In both the House of Lords and the House of Commons, 
the membership of the several committees is determined by a 
Committee of Selection. This Committee, especially in the 
House of Commons, has .more than once been the subject of 
eulogy because of the impartial and effective manner in which 
it arranges the composition of the various committees. Its 
own membership, which technically is determined by the House, 
is in practice carefully decided upon by agreement between the 
leaders of the Government and the Opposition. The Com- 
mittee of Selection is said to conduct its business on such a plane 
that it is never constrained to take a vote on any matter be- 
fore it v 

In special circumstances, the Houses of Parliament may hold 
secret sittings. Normally, however, their sittings are public. 
In practice, this publicity takes several forms. In the first place, 
the public is in principle allowed to be present during the course 
of the proceedings of the Houses. Naturally, considerations 
of space require a selective process in the form of the issuance 
of tickets. In modern times, of course, the newspapers are 
at pains to report from what takes place in the various sittings 
anything that is likely to be of interest to the public. Again, 
official publications put at the disposal of all people who care 
to consult them various kinds of information concerning the 
activities of Parliament. Not only are minutes, reports, and 
the like published in great abundance, but, more especially, a 
stenographic transcript of the debates held during the sittings 
of the Houses, the Committees of the Whole House, and even 
other committees is regularly published as a governmental en- 
terprise. In this way, any reader may hear in any but a literal 
sense every word uttered in debate, even, in certain cases, where 
several proceedings take place simultaneously. Reporting of 
debates in Parliament was originally a private undertaking, 
which gave considerable renown to the name of Hansard. Since 
1909, the Parliamentary Debates have -been a governmental 
publication. 



CHAPTER XII 
THE FUNCTIONS OF PARLIAMENT 

The English Parliament, like other modern legislative bodies, 
r or rather, perhaps, other legislatures are, in this as in so many 
other things, like the English Parliament performs three great 
functions. These functions are naturally closely related; other- 
wise, in the natural evolution of Parliament and of its activities 
by differentiation of the Curia Regis, they would scarcely have 
become associated with Parliament. At the same time, the 
three interrelated functions are in definite respects to be distin- 
guished from one another. They are, respectively, the making 
of law, the administering of public finance, and the controlling 
of the executive. 

The close interrelationship between parliamentary functions 
renders useless and even misleading any comparison of their 
relative importance. All of them are highly important; and to 
assume, as is sometimes done, that legislation, because this 
function gives to legislatures their generic name, is more im- 
portant than the other two functions contradicts the simple facts 
of the situation. Legislation certainly has no claim to priority 
on historical grounds. If, in modern times, it customarily re- 
ceives attention first, the explanation is largely to be found in 
the fact that legislation has come to be the primary, and hence 
the typical, rather than the most important, activity of repre- 
sentative assemblies. 

I . THE . MAKING . OF . LAW 

By the formal process of legislation, Parliament or, tech- 
nically, the King in Parliament as a general rule brings legally 
binding provisions into existence. This is essentially true* 
whether such provisions deal with a matter not hithertp subject 
to legal regulation or whether they modify existing legal ar- 

172 



THE FUNCTIONS OF PARLIAMENT 173 

rangements. The process of legislation, at present, usually in- 
volves as a central point measures known as bills. Bills are, 
of course, not law, but only potential law. When the provi- 
sions of a bill have been subjected to a certain detailed process, 
the provisions thereby become law. In the absence of any of 
these details, the precisions remain in the condition of poten- 
tial law. 

In theory, law is made by the King with the advice and con- 
sent of Parliament. This theory is in a sense formulated in the 
usual enacting clauses of bills, which read "Be it enacted by 
His Majesty King George VI, by and with the advice and con- 
sent of the Lords Temporal and Spiritual and of the Commons 
in Parliament, assembled and by authority of the same." Thus, 
technically, a measure is made law by the pure formality of 
assent on the part of the King. Assent is, of course, never 
refused in practice. It was refused for the last time in 1707, 
in the reign of Queen Anne (1702-1714). 

What, in practice, is thought of and spoken of as the passing 
of law by Parliament is, in theory, a process by which the 
advice of Parliament is put into agreed form and presented to 
the King, who, theoretically again, may or may not cause it 
to become part of the ( law of his Realm. Naturally, in modern 
times, action by Parliament is all important. Historically, how- 
ever, the part played J)y the King was of considerable moment. 
Indeed, before the reign of Henry VI (1422-1471), bills were 
not employed. The general situation was that the King desired 
consent on the part of Parliament to the raising of money for 
his various enterprises, more especially for wars, whereas Par- 
liament took the occasion to inform the King of their "griev- 
ances" and of the need for law. Parliament, more especially 
the House of Commons, humbly but firmly insisted that their 
grievances should be redressed as a prerequisite to their meeting 
the King's request for money. The King, in his need, was 
often more free with his promises than he was accurate or trust- 
worthy in their fulfillment. As a result, definite advance in 
the matter was made when Parliament established the practice 
of putting into writing what they thought should become law. 
This was the simple origin of bills. 



174 THE CENTRAL GOVERNMENT 

In England, /at the present time, bills are classified in accord- 
ance with two important distinctions. In the first place, bills 
are divided, on the basis of a difference of substance, into 
public bills and private bills. Public bills are those that con- 
template the establishment of law on a general scales They 
are such bills as contain subject matter a{^>licable uniformly to 
the public as a whole or to large parts of it. On the other hand, 
private bills are concerned with establishing legal arrangements 
that will apply to a specific person, corporation, group, com- 
munity, or the like.! Private bills are passed in considerable 
number j but a special procedure, which on the whole gives 
satisfaction, makes it possible for these bills to be handled 
effectively without much encroachment on the time of Parlia- 
ment. In this way, the Houses are free to allot to the treat- 
ment of public bills most of the time that they give to legis- 
lation. 

Public bills are sub-divided, according to a formal distinction, 
into Government bills and private members* bills. Both, it may 
be insisted, are, so far as subject matter is concerned, public bills 5 
but their o'rigin is different. A Government bill, as its name 
implies, is a public bill introduced by a minister on behalf of the 
Executive. A private member's bill is a public bill introduced^ 
by a member of Parliament simply in his capacity as a member. 
Thus, these two kinds of public bills do not differ in substance. 
In principle, moreover, the procedure with respect to them is 
the same, that is to say, it is the general procedure for public, 
as distinguished from private, bills. However, in practice, Gov- 
ernment bills normally assume an importance far transcending 
that of private members' bills. 

The frank recognition in England of leadership on the part 
of the Executive in the matter of legislation has caused the 
House of Commons, where practically all important public bills 
are in practice introduced, to allot to the, Government by Stand- 
ing Order most of the time in which public bills may be brought 
in. As a result, the greater part and the most important part 
of the public bills introduced will normally be Government 
bills. 

In general, private members', measures must be introduced 



THE FUNCTIONS OF PARLIAMENT 175 

on a Friday early in the session; for the Government monopo- 
lizes -the time on all the earlier days of the week and, later in 
the session, takes Fridays as well. Though the House meets 
earlier on Friday, it also adjourns much earlier because of the 
week-end habit j and, for the same reason, attendance is likely 
to be scant. 

Since many more potential private members' bills are ready 
for introduction than could possibly be introduced on the dozen 
or so Fridays available, the simple expedient adopted in the 
matter is that of drawing lots. Private members who desire to 
participate in the draw hand in their names at the beginning 
of the session. Successive Fridays are allotted to members in 
the order in which their names are drawn. 

If a private member is lucky enough to draw an early Friday, 
apparently 'he may, with further luck and considerable skill, 
succeed in having his bill become law. However, passage seems 
to depend on a combination of various , circumstances. If the 
Government is opposed to the bill, it will have no chance. If 
the Government should approve it so definitely as to make it 
its own, the bill would, of course, become a Government bill. 
If the Government is indifferent, various procedural difficulties 
stand in the way. However, it would appear that if the private 
member is popular or at least not unpopular, if the bill is popular 
or at least not unpopular, and if the member. possesses some 
skill in respect of parliamentary procedure, the bill will have a 
fair chance of being passed into law. 

t A typical public bill is a bill introduced by the Government, 
in the House of Commons. Such typical public bill becomes 
law by complying with the detailed requirements of a definite 
procedure. This process involves a number of steps, commonly 
known as stages. In general, the enactment of a bill into law 
consists of eleven stages. However, this apparently large num- 
ber appears considerably less formidable, when the several 
stages are classified. The eleventh stage consists of formal 
approval by the King. Of the remaining ten stages, five take 
place in the House of Commons and five, which are in general 
the same, in the House of Lords. Three stages are accounted 
for by the traditional principle that a bill must be read three 



176 THE CENTRAL GOVERNMENT 

times. The reference of a bill for committee study and the 
report that is made Tby such committee as is involved represent 
the other two stages. These two stages are introduced between 
the second and third readings. As a result, a bill, in becoming 
law, passes through the following five stages in the House of 
Commons: 

1. First Reading 

2. Second Reading 

3. Committee Stage 

4. Report Stage 

5. Third Reading 

According to a basic principle of parliamentary procedure, 
activity on the part of the House of Commons begins, in 
general, when a motion is made. Normally, a motion must be 
preceded by notice that it is to be made. Hence, notice and 
motion form a fundamental element of parliamentary procedure. 
In turn, a decision by the House regularly involves an order 
proceeding front its authority. This, of course, leads to further 
action witjh a view to the carrying out of the order. On the 
other hand, the Standing Orders that exist are, as their name 
implies, applicable at any time to such circumstances as are 
envisaged in the several cases. 

The stage of the first reading is, in general, equivalent to 
introduction. In other words, bills are at this stage officially 
brought before the House. The procedure usually followed is 
based on Standing Orders that permit the Government and, 
in defined circumstances, private members to introduce a 
measure, after notice but without motion, by bringing it forward 
and presenting it at the Clerk's desk. In practice, when the 
time arrives of which notice has been given, the introducer 
merely comes forward and presents his bill. The bill in reality, 
takes the form of a "dummy," special stationery for the pUr- 
pose being officially furnished. The Clerk reads the title of 
the bill; and the bill is considered to have been read for the 
first time. This is a typical example of how a great deal of 
the form of parliamentary procedure has been retained in Eng- 
land, as well as in other countries, after the reason for the 



THE FUNCTIONS OF PARLIAMENT 177 

substance has ceased to exist, and yet retained in such a way 
that procedure may actually be considerably shortened. Thus, 
full compliance with the parliamentary procedure with which 
most people are acquainted would seem to require that a motion 
be made and seconded to the effect that the measure be read 
the first time, that discussion of the motion be held, that a 
vote take place, that an affirmative vote be followed by an order 
authorizing the reading, that the reading take place, and so 
on. On the other hand, in normal English practice at the 
present day, the Standing Orders assume that all this has taken 
place when the Clerk has read the title, after simple presenta- 
tion of a dummy bill. At this stage of the first reading, the 
introducer, on rare occasions, makes a short statement concern- 
ing the value of the bill; and the Opposition may make an 
equally short statement of its attitude towards the proposed 
measure. On still rarer occasions, the introducer may formally 
ask permission of the House to introduce a bill; and, thus, a 
debate may take place at the first reading stage. In any event, 
when the formality of this introductory stage has been com- 
pleted, the bill is ordered to be printed and a time set for the 
second reading. 

In practice, the dummy bill employed at the first reading 
stage is not in most cases symbolic of the condition in which 
the substance of the bill is likely to be. In the case of a public 
bill introduced by a private member, the member probably has 
in view a pet measure of his own or of another person that is 
in draught or even complete form; and, more especially, a 
Government measure is sure to Have been the object of ex- 
tended study and discussion. In fact, in the matter of the 
preparation of a bill, a member of the Government normally 
possesses a definite advantage over a private member. The 
Government may call on expert draughtsmanship that is not 
available to the average private member. A Government bill 
may have the benefit not only of legal counsel in any of the 
several Departments but also of special Parliamentary Counsel 
maintained for the purpose in the Treasury. Even so, the 
opinion is sometimes expressed that modern legislation is be- 
coming* increasingly obscure. 



178 THE CENTRAL GOVERNMENT 

The printing of a bill, of course, renders knowledge of its 
contents readily accessible to everyone. Hence, as may easily 
be understood, at no one of the three readings are the provi- 
sions of a bill literally read through in the House. However, 
historically, during the time previous to the period of the regu- 
lar printing of bills, when possibly only one manuscript copy of 
a measure existed, three actual readings were of undoubted 
importance for purposes of thorough understanding. 

When the time for the second reading stage arrives, the 
member in charge of the bill moves that on that occasion it be 
read a second time. He supports his motion by a speech which 
opens the debate, or he indicates simply his intention of reserv- 
ing his speech until a later point in the debate. The debate of 
the motion consists of speeches dealing only with the general 
principles of the measure concerned, consideration of particular 
principles and other detailed discussion being out of order. 
This stage is, therefore, of the greatest importance, as it affords 
opportunity for thorough discussion of the bill as a whole. The 
members of the Opposition do not usually vote against the 
motion tfcat the bill be read a second time; they either move 
a verbal amendment involving a substitution that causes the 
motion to become one for a second reading of the bill at some 
time after the probable adjournment of the House, or they 
move a reasoned resolution that contains a principle hostile to 
that of the bill. The Government not infrequently withdraws 
a bill at this stage , but, in the absence of such withdrawal, suc- 
cessful opposition would involve, of course, the downfall of 
the Ministry. Moreover, a close vote at the second reading 
stage normally indicates rough going ahead. In the more 
usual case of the successful passage of this stage, the bill stands 
committed 5 in other words, it proceeds to the committee stage. 

Until comparatively recently, a public bill that reached the 
committee stage was considered in Committee of the Whole 
House, unless the House should order otherwise. Thus, even 
after the establishment of Standing Committees, the presump- 
tion was that the Committee of the Whole House would be 
employed. However, in 1907, this presumption was reversed. 
A public bill is now heard at the committee stage by a Standing 



THE FUNCTIONS OF PARLIAMENT 179 

Committee, unless the House orders otherwise. In practice, 
public bills to which the Cabinet attaches great importance are 
still sent to the Committee of the 'Whole House. In committee, 
the provisions of a bill are considered in detail from beginning 
to end, as are the numerous amendments of which notice has 
meanwhile been given. This is naturally a laborious process; 
and it is the point at which the legislative stream is likely to 
move most slowly. Hence, when public bills were normally 
heard in Committee of the Whole House, the fact that one 
bill was retarded at this stage tended to mean that all others 
were held up as well. Manifestly, therefore, as many Standing 
Committees as meet at one time can deal with that many times 
as many bills as the Committee of the Whole House. 

The Executive, it may be noted, maintains with persistence 
its guiding hand throughout the committee stage of a bill. It 
does not relinquish its leadership to a reporter as in France or 
to a "member in charge" as in the United States. A Minister 
is in charge. The fate of the bill depends almost exclusively 
upon him. He must guide the bill through the Committee with 
tactful, and if necessary forthright, firmness in respect of princi- 
ples, and with the appearance of amiable resignation and broad- 
mindedness in connection with unimportant detail. For the suc- 
cessful performance of such a task, a Minister, as may be readily 
seen, should be possessed of a relatively rare combination of 
qualities. The parliamentary system of government at its best 
pushes to the top men with these and other characteristics of 
real leaders. 

When the detailed consideration of a bill has finally been 
completed in Committee, a report is made to the House. If 
the Committee of the Whole House has been employed, the 
highly formalistic character of the report is manifest. The 
Chairman, who .has been presiding over the members of the 
House, makes to the members preside^ over by the Speaker 
a report on what they have done. Clearly the case is not the 
same with respect to reports from other committees. If the 
bill reported has not been amended in Committee, the report 
stage may become a formality. However, amendments are in 



l9O *HE CENTRAL GOVERNMENT 

order also at this stage; and the debate is a further debate on 
the detailed provisions of the bill. 

The final stage in the House is that of the third reading. 
It may, on occasion, be taken on the day that the bill is re- 
ported j but normally notice is given that this stage will be 
set down for a later time. At the third reading, debate is again 
on principle j for, after the committee and report stages, the 
principle may no longer be the same. Only amendments in- 
volving verbal alterations are in order. When the motion that 
the bill be read the third time is carried, the bill is regarded 
as having been passed. After similar stages in the House of 
Lords and formal acceptance by the King, the bill becomes 
part of the law of the land. 

The ceremony by which bills receive the royal assent repre- 
sents one of the many examples of ancient parliamentary pag- 
eantry. This royal assent is given in the House of Lords. It 
is sometimes given by the King in person, but more often by 
royal commissions appointed for the purpose. The Speaker 
and Commons are summoned by Black Rod to appear in the 
House of Lords. The Speaker and perhaps some members of 
the Hous of Commons proceed thither. Possibly a few mem- 
bers of the House of Lords will likewise be present. When 
the King does not perform this duty in person, three commis- 
sioners represent him in the House of Lords. The commission 
authorizing them to act is read by the Lord Chancellor. There- 
upon, the Clerk of the Crown reads out the title of each bill, 
and the Clerk of Parliaments pronounces the royal assent. The 
several formulas employed date from the period when legisla- 
tion took place through petition to the King. They are couched 
in Norman French. A public bill that is non-financial in 
character is accepted with the formula, "le Roy le veult." A 
financial bill is accepted with the words, "le Roy remercie ses 
bons sujets, accepte leur benevolence et ainsi le veult." The 
formula for assent to private bills is "soit fait somme il est 
desire." When the royal assent was refused to a bill, the some- 
what soft words, ^le Roy s'avisera," were employed, dictated 
originally, it is said, by the king's desire or need to temporize 
with Parliament. 



THE FUNCTIONS OF PARLIAMENT l8l 

In general, it may be seen, English legislative procedure with 
respect to a public bill offers, in spite of the exigencies growing 
out of modern conditions, considerable opportunity for care- 
ful consideration. Though marked tendencies have manifested 
themselves throughout the world for debate to be reduced 
almost to a nullity, this has by no means happened in England. 
On the contrary, two debates of a generally thorough nature 
on the principles of measures are held, that at the second read- 
ing stage and that at the third reading. At least one debate on 
details, that at the report stage, takes place in the House. 
Moreover, if, at the committee stage, the Committee of the 
Whole House is employed, a second discussion of details occurs 
in the House, instead of that otherwise taking place in a repre- 
sentative Standing Committee. This is not to say that debate 
in England remains as full and free as in the past. The Eng- 
lish Parliament, in common with the legislatures of apparently 
all' countries, has, under the strain of modern conditions, tended, 
as a distinguished former Clerk of the House of Commons * 
asserted, "to break down." The House, in order to cope with 
the situation, has adopted several expedients. One of them, 
is the shortening of debate. Such limitation is in general ac- 
complished by what is known as closure. 

As a general principle, closure of debate is aimed at obstruc- 
tion. Obstruction, or taking advantage of the rules in order to 
retard or prevent legislative action, is, up to a certain point, a 
valuable and proper weapon for defence of the minority. It 
may, of course, be abused, in which case the majority may find 
itself powerless. On the other hand, abuse of the closure may, 
manifestly, result in unjust treatment of the minority. 

In England, the use of the closure grew out of obstructionist 
tactics on the part of Irish Nationalist members of the House 
of Commons. These members, under the leadership of Parnell, 
proceeded, between 1875 and 1880, to obstruct at all times in 
every way possible all kinds of business that might come be- 
fore the House. The Speaker was finally constrained to admit 

1 Sir Courtenay Ilbert. Cf. Parliament (Revised ed., London, 1920), 
pp. 135-138$ and his Supplementary Chapter in Redlich, The Procedure 
of the House of Commons (3 vols., London, 1908), Vol. Ill, p. 207. 



l82 THE CENTRAL GOVERNMENT 

that* the rules of the House left him powerless to cope with 
the situation. The House for its part showed itself at first 
reluctant to take steps that involved infringement of freedom 
of debate. However, in 1880, action was taken that facilitated 
suspension of disorderly members j and, in 1881, the Speaker 
was given emergency power to deal with the situation. In 1882, 
under the leadership of Kjladstone, a rule was adopted that is 
the basis of the typical closure existing at present. The rule 
was not invoked until 1885; and, in 1887 and 1888, modifica- 
tions were made in it. At the present day, a member may arise 
in the course of debate and move "that the question be now 
put." If the Speaker is convinced that the motion does not 
unduly infringe on the rights of the minority, he will put the 
question without further debate. ^ If the question is carried by 
a majority including as many as 100 members, the matter under 
discussion is brought immediately to a vote and any other per- 
tinent question may be moved that is calculated to carry out 
the intention of stopping debate at the point intended. This 
method of closure may be employed in Committee of the 
Whole House and in Standing Committee as well as in the 
House itself. 

The simple closure has apparently not proved altogether 
successful in the face of determined obstruction; and other 
forms of restricting debate have been attempted. What is 
known as "closure by compartments" or "the guillotine" in- 
volves allotting a certain amount of time to various parts of a 
measure or to its several stages and at the appointed time taking 
a vote, no matter what the situation may be. This somewhat 
ruthless method manifestly may involve bringing to a vote 
undiscussed many parts of a measure. Where, however, a "time 
table" is drawn up in advance by agreement between the Gov- 
ernment and the Opposition, the latter under this arrangement 
may not reasonably cdmplain that important aspects of a bill 
or of proposed amendments have not been properly discussed, 
if time has been wasted by them on unimportant points. 

Another form of closure stipulated for in the Standing Orders 
is kno\tai as the "kangaroo." The House, in employing this 
device, authorizes the Chairman in Committee of the Whole 



THE FUNCTIONS OF PARLIAMENT 183 

House or the Speaker at the report stage to determine which 
of such amendments as are proposed are most worthy of discus- 
sion- The presiding officer, armed with 'this power, may then 
move about among the various proposed amendments in a 
manner that is suggested by the name of this method of short- 
ening debate. 

When, in the course of the passage of a bill through the 
House of Commons, the question is put at numerous points, 
a vote is, of course, taken. Often the Speaker can, without 
protest, determine from the "ayes" and "noes" which side is 
to prevail. Not infrequently, however, there is occasion for a 
formal recorded vote ; and what is known as a "division" takes 
place. This is a simple and efficacious, as well as an interesting, 
procedure. When the Speaker announces his judgment of the 
outcome of an oral vote, the side against which it goes makes 
a loud outcry of protestation. The Speaker thereupon announces 
that a division will be taken. Immediately, the two lobbies 
on each side of the House, known as "division lobbies", are 
cleared. The Speaker turns over an hour glass, in order that, 
from the running of the sands of time, he may know when an 
allotted period of minutes has elapsed. Bells are sounded 
throughout places where members are likely to be; and police- 
men and others take up the cry of "division." The Whips of 
the Government and Opposition have the important practical 
task of marshalling their forces in as great numbers as possible. 
Finally, the doors of the House are closed. The question is 
put again. Tellers for both sides are appointed. Then, such 
members as wish to vote in the affirmative pass into one lobby 
and those who desire to vote in the negative pass into the other. 
In both cases, the members are counted 5 their names are 
checked; and they pass back into the House through different 
doors. In this expeditious manner, the taking of a formal vote 
is completed within the period of a few minutes. 

Procedure in England with respect to private bills is in its 
general outlines the same as for public bills. Thus, such a 
bill has formally in each House three readings, as well as com- 
mittee and report stages; and it receives the approval of the 



184 THE CENTRAL GOVERNMENT 

King. However, in practice, certain differences in procedure 
are of considerable importance. The principal variations occur 
in connection with the first reading and at the committee stage. 
This is because private bill legislation is in important respects 
of a judicial nature. Since the matter involved in such a bill 
is a private one, then, if it is of a controversial character, it 
clearly bears a general resemblance to a question for litigation. 
In an ordinary civil case involving private rights, existence of 
law dealing with the controversy is assumed, and a court weighs 
the respective merits of the pijyate parties. In some instances, 
as is well known, the law assumed to exist is so uncertain, so 
general, or so vague that the court for all practical purposes 
makes law. However, strictly speaking, only Parliament can 
create law 5 and if, as in the case of private bills, there is a 
definite assumption that no law exists in the matter, the case 
becomes one for Parliament. What is desired is not a decision 
as to what the law is but rather a decision as to what law, if 
any, there should be in the matter. Initiative belongs to a 
private party who desires the solution of some situation; and 
his problem is in rough outline the same as if he were under- 
taking litigation. Thus, he proceeds by petition. According 
to elaborate Standing Orders, calculated to regulate private bill 
procedure so accurately as to save parliamentary time, a private 
bill is attached to the petition; and evidence must be furnished 
that certain necessary formalities have been complied with. 
Thus, for example, certain notice must have been given in the 
newspapers of intention to introduce the private bill, in order 
that interested parties may have ample opportunity to protect 
their rights; and a Government Department that is affected 
must be informed of the matter. That all is in order is deter- 
mined by Examiners of Private Bill Petitions. These exist in 
both Houses, between which private bills are equally distrib- 
uted. 

If a petition attending a private bill is found to have complied 
with the provisions regulating the matter, the bill is then intro- 
duced in the routine manner that is practised in the case of 
most public bills; and the private bill is considered to have 
been read the first time. The second reading is also likely to be 



THE FUNCTIONS OF PARLIAMENT 185 

entirely a formality, except in the rare cases where an important 
new principle is contained in the measure. 

The real hearing on a private bill takes place at the committee 
stage. The committee involved is a small committee of four or 
five members, chosen in the House of Lords by the House and 
in the House of Commons by the Committee of Selection. 
These committee members sit as a judicial body. Persons who 
are interested in the passage of a private bill support it before 
the committee. Those who oppose^ marshall their objections. 
Both sides are represented by expensive legal counsel, expert in 
this kind of work. The primary question for the committee to 
decide is whether the preamble has been proved. If the decision 
is in the negative, the bill fails. If the preamble is decided to 
have been proved, the committee then considers amendments. 
Finally, it makes a report, which is for practical purposes a 
decision. This is normally accepted as a matter of course by 
the House; so that the report and third reading stages are, with 
few exceptions, formalities. 

The solution that has been worked out in England for the 
problem of what is usually called in the United States "special 
legislation" appears to be highly satisfactory on all sides but 
one. The procedure is frequently criticized on the grounds of 
its great expense. This, as well as other considerations, it may 
be noted, causes private interests frequently to seek through 
administrative action the same purpose as is served by private 
legislation. On the other hand, English private bill procedure 
avoids "log-rolling" and other abuses that are so frequently 
complained of in America. The time of Parliament is saved by 
the simple delegation of most of the work involved to a few 
members. Manifestly, much depends on the confidence 
placed in these members; but there is apparently no complaint 
that partisan or other ulterior motives ever cause them to be 
unworthy of their trust. 

2. THE ADMINISTERING OF PUBLIC FINANCE 

Of the three modern legislative functions, that in the per- 
formance of which Parliament more especially, the House of 



100 THE CENTRAL GOVERNMENT 

Commons deals with the people's money, that is to say, with 
money that belongs to the people in their public capacity, may 
be regarded as historically the oldest. Indeed, in a very 
definite sense, the origin of the House of Commons was closely 
connected with this function. The King found in early times 
that the raising of money was greatly simplified, if he should 
ask for a grant through a body representative of the various 
elements called upon to give it. From this point there was no 
great distance to a recognition of the fact that money could not 
properly be raised in any other way. Hence, there was de- 
rived the familiar principle that there should be no taxation 
without representation. 

The control of Parliament over taxation in England is com- 
monly said to have been established in the reign of Edward 
III (1327-1377). However, the operation of the control was 
far from being smooth at all times. Firm establishment of the 
principle required centuries of struggle. Especially during the 
contest between Parliament and the King in the seventeeth 
century did the fate of the principle hang in the balance. At 
the same time, even in the darkest moments, force of precedent 
and assertion of the principle, though often temporarily unsuc- 
cessful, kept alive a spark; and the subsequent victory of Par- 
liament over the King was not only in part aided by substantial 
practical control of Parliament over taxation but also can be said 
to have established firmly such control for all time to come. 

Precedent for control by Parliament of expenditure is also 
said to be found as far back as the reign of Edward III. 
However, historically, the representatives who granted funds 
to the King and who, once summoned, considered themselves 
fortunate to return home after striking a good bargain with 
him were, in the beginning, largely indifferent, from the, nature 
of the case, to the use made of the money by the King. Con- 
sequently, genuine control by Parliament of expenditure was 
established much later. Nevertheless, in modern times, one of 
the most striking phenomena of government is to be found in 
the fact that, in general, legislatures prize more highly their 
control over expenditure than their historic power of taxation. 
The reason is relatively simple. Taxation is commonly re- 



THE FUNCTIONS OF PARLIAMENT 187 

garded as an evil, even if a necessary evil; and no group of 
representatives likes to appear to the people in the guise of a 
body that has increased old taxation or voted new. 'On the 
other hand, not only does the spending of money often make 
it possible for representatives to appear before their constituents 
as having secured benefits for the community; but, what is more 
important, control of expenditure carries with it a definite po- 
tential control of the practical activities of government. These 
activities, which are performed by executive and administrative 
agents, involve in practically all cases, directly or indirectly, the 
spending of money. Hence, control of the money to be spent 
is control of the spenders. This is the reason that ultimate 
control of the executive by the legislature must exist, to a 
greater or lesser extent, in every democratic country. 

The present British system of administering public finance 
has been the source of considerable envy throughout the world. 
At the same time, the system is not easy to reproduce; for it 
represents a long historical growth, and it is the result of British 
tradition, experience, and character. Ultimate control, of 
course, rests with Parliament. In practice, this means that final 
authority belongs to the House of Commons. 1 In that House, 
the principal steps are taken in a system through which Parlia- 
ment exercises authority in transactions involving the people's 
money. Many of these transactions, it is true, display char- 
acteristics that have come to be associated with administration 
rather than legislation. At least two important results of this 
fact appear. In the first place, the executive and administrative 
agencies, even when allowance has been made for the highly 
developed concept of leadership in England, play a particularly 
important part in the system of public finance. In the second 
place, the House of Commons gives to financial matters a some- 
what special treatment. The principal steps in this treatment 
are preliminary to the incorporation of decisions into the form 
of bills and to the subsequent employment of the regular public 
bill procedure. Indeed, where a'financiajf bill is concerned, all 

*. Ch. XIII, p. 2i$,mfra. 



188 TETE CENTRAL GOVERNMENT 

the stages of this procedure tend to become formal. Before the 
bill comes into existence, most of the work has been done, 
either by the executive branch of government in a great work 
of preparation or by the House of Commons in a special pro- 
cedure. 

The principal governmental function performed from year 
to year in every country is the preparation, consideration, and 
authorization of the budget. The budget is, of course, a careful 
plan of future financial activity. Viewed in simple outline, it 
involves, on the one hand, estimates of necessary and desir- 
able financial expenditure and, on the other, a calculation 
of anticipated revenue. As a matter of fact, the two sides of a 
national budget are planned in that order , that is to say, what 
is to be spent is, in general, determined first and how the money 
is to be secured is decided afterwards. In this way, the budget 
of a great nation, again generally speaking, involves a relation- 
ship between outlay and income that is the opposite of such 
relationship in private financial planning. Indeed, it is some- 
times said that men who have been successful in business rarely 
make reaL c statesmen precisely for this reason. By the same 
token, the thinking of many private citizens with respect 
to the elementary principles of public finance is often marked 
by considerable confusion. 

In reality, the basic question involved in the difference be- 
tween public and private finance appears to be that of the nature 
of the power and function of the State. Thus, a curious and 
important situation exists. In political science, the question of 
finance, which is in some respects to be thought of as the most 
practical and material of human concerns, is closely, and even 
inevitably and inextricably, connected with highly theoretical 
considerations of ultimate principle. 

In juristic theory, a State, being sovereign, possesses illimit- 
able power. This principle, or working hypothesis, manifestly 
is completely valid only in a legal sense. In any other sense, 
there are clearly many things that the State is, for all practical 
purposes, unable to do. At the same time, there is a certain 
amount of correspondence between theory and fact. Thus, with 
respect to property, not only is there, in England for example, 



THE FUNCTIONS OF PARLIAMENT 189 

no law that could render invalid an Act of Parliament stipulat- 
ing the raising of revenue; but also, in a practical sense, 
Parliament has at its disposal, if not an unlimited, at least an 
indefinite amount of money. Hence, in general, Parliament 
decides first how much money is to be spent, assuming roughly 
that if the public interest renders the expenditure necessary, or 
even desirable, the funds will be forthcoming. Manifestly, 
such an assumption is impossible in private finance. 

Even in legal theory, the hypothesis that the State possesses 
illimitable power does not involve the implication that all this 
power ought to be used. If the State decides to employ or to 
try to employ some of its power, nothing can render the action 
illegal; but whether or not the State ought to use this or that 
power, or much or little power, is a question that may be, and is, 
answered differently according to fundamental cleavages of 
opinion. It involves the ultimate problem of political science, 
the problem of the reconciliation of liberty and authority. It 
is the problem of the function, of the proper function, that is 
to say, of the State. In practice, the answer that is given to 
the problem at any given time is reflected with considerable 
accuracy in a carefully constructed plan of expenditure. This 
is additional reason why, in public finance, the estimates of ex- 
penditures are reckoned as the first step in the procedure of 
administration. These estimates represent the policy of the 
moment; and the policy is based on views concerning what the 
State ought to attempt. 

This is not to say, of course, that no connection exists in 
public finance between outlay and income. In reality, the funds 
at the disposal of the greatest nation are not literally inexhaust- 
ible. Moreover, taxation, the principal source of governmental 
revenue, involves itself questions of policy and depends largely, 
at least in democratic countries, on public opinion. All this is 
assumed when the estimates of expenditure are being planned. 
The problem of raising the money is always in the not very 
remote background. If this problem can not ultimately be 
solved in terms of the estimated outlay, the budget will, of 
course, be out of balance. At the same time, the fact remains 
that, in general, the relationship between outlay and income 



190 THE CENTRAL GOVERNMENT 

is fundamentally different in public finance from the same 
relationship in private finance. 

In England, formal action by Parliament that renders legal 
the expenditure of public money takes the form, of course, of an 
Act of Parliament. Such an Act technically authorizes the pay- 
ment of money out of what is known as the Consolidated Fund. 
This Fund, as its name implies, contains in a lump sum all the 
moneys formerly constituting special funds. Deposited in the 
Bank of England, it is a reservoir, as it were, out of which 
payments authorized by Acts of Parliament are made. The 
principal Act of this kind is the annual Appropriation Act. On 
the other hand, the Consolidated Fund is replenished through 
moneys paid into it by authority of Act of Parliament, which 
likewise gives legal validity to the raising of revenue, particu- 
larly to taxation. The principal Act in this respect is the annual 
Finance Act. Budget activities for a given year may be re- 
garded primarily as preparing the ground for the passage of 
these Acts. 

Though the ultimate control by the House of Commons 
over the spepding and raising of money is established beyond 
any possible doubt, the House, more than two hundred years 
ago, voluntarily abandoned all initiative in matters of public 
finance. Two Standing Orders, which are none the less effective 
for falling in the category of rules of procedure, stipulate that 
the House will consider no proposals for expenditure or for 
raising revenue except such as emanate from the Crown. This 
means that England employs a Budget that is in high degree 
what is sometimes called an "executive budget." The authority 
of the Crown in matters of financial policy manifests itself in 
practice in two ways. One of these is the leadership of the 
Chancellor of the Exchequer, and the other is a role of primary 
importance played by the Treasury. 

The fiscal year in Great Britain begins on April first. In 
anticipation of that date, the Treasury, at the beginning of 
October, requests from all spending agencies an estimate of the 
amount of money that will be required for expenses during the 
approaching financial year, that is to say, from April first until 
the thirty-first of the following March. The Treasury furnishes 



THE FUNCTIONS OF PARLIAMENT 

forms and certain figures for purposes of comparison and rec- 
ommends the strictest economy. Between that time and the 
opening of Parliament approximately a month after the begin- 
ning of the calendar year, constant financial activity goes for- 
ward in the several departments j and frequent consultations 
take place. The Treasury maintains a strict supervision, check- 
ing carefully all figures submitted to it and in general bending 
every effort towards the greatest possible economy. It is said 
that the Treasury is in frequent conflict with the Defence Serv- 
ices, who habitually demand more money than is agreeable to 
the Treasury. It is also said that the heads of these services 
often cause strained relations at about Christmas time, on oc- 
casion threatening and even offering to resign. The concilia- 
tory efforts of the Chancellor of the Exchequer, of the Prime 
Minister, or even of the Cabinet are called upon in the difficulty. 

The function of the Treasury, then, may be seen to extend 
much further than to a mere collection and coordination of the 
alleged requirements of the various spending agencies. The 
Chancellor of the Exchequer possesses a genuine authority of 
considerable proportions. In the end, he succeeds in adjusting 
the outstanding difficulties j and the estimates are at last ready 
to be submitted to the House of Commons. Soon after the 
opening of the session, they are presented in four parts, namely, 
those for the Army, the Navy, the Air Force, and the Civil 
Service. They are brought before the Committee of Supply, 
which, together with the Committee on Ways and Means, is 
set up at the beginning of the regular parliamentary session. 
Both Committees, in reality, are of the same composition 5 for 
they are both Committees of the Whole House, with different 
names corresponding to different functions. 

The estimates of expenditure, then, which, it may be re- 
peated, are not as in some countries in the form of a bill, are, 
in their four parts, presented by suitable Ministers to the Com- 
mittee of Supply. According to a Standing Order of the House 
of Commons, the Committee of Supply must before August 6 
devote twenty meetings to consideration of the estimates. In 
this length of time, no possibility exists that the whole of the 
estimates can be discussed. In reality, the discussion is devoted 



192 THE CENTRAL GOVERNMENT 

to debate on policy and to criticism of the Government of the 
day. This situation results from several considerations, more 
especially from the fundamental character of a governmental 
budget. 

The budget of a great nation, more especially the budget of 
expenditures, definitely possesses a two-fold aspect. In the first 
place, the estimated expenses of government are of a financial 
character. They involve sums of money, calculated in terms 
of pounds, shillings, and pence. They are a financial reckoning, 
suggesting questions of cost, efficiency, economy, and the like. 
On the other hand, the budget, particularly the budget of ex- 
penditures, has a political side. It is a declaration of policy. 
This declaration, while couched in terms of money, involves 
none the less a programme of government. Hence, a discus- 
sion of money may easily turn into a discussion of policy; and, 
as has been said, this is precisely what happens in England. 
The whole of the discussion of the estimates takes the form 
of discussion of policy. Indeed, though the theoretical possibil- 
ity exists of separating the financial and political aspects of a 
proposed expenditure, experience suggests that estimates reck- 
oned with reasonable care cannot in practice be examined apart 
from policy. At all events, in England, executive leadership 
is so highly developed that a proposed change in the estimates 
inevitably involves criticism of the Government and suggestion 
of lack of confidence in it. Since no proposal by a private 
member for an increased or a new expenditure is in order, any 
amendment stipulating for a change downwards implies in 
reality elimination of some item of the Government's pro- 
gramme. This implication is definitely recognized in practice. 
The assumption is accepted that an expert Treasury is a guaranty 
that the financial reckoning has been accurately made. The 
time of the House, it is assumed, can be better employed in 
criticizing policy. Thus, in practice, the motion is frequently 
made that a Minister's salary be reduced by a nominal amount, 
not with the idea that the motion will be ultimately carried but 
with the certainty that the debate on policy may range over a 
wide field. 

In the end, the estimates are voted as presented by the Gov- 



THE FUNCTIONS OF PARLIAMENT 193 

ernment. A great part of them will not have been discussed 
at all. In these two ways, confidence in the Executive is dis- 
played in somewhat different senses. Any change in the esti- 
mates would, by indicating disapproval of the Government's 
policy, be construed as lack of confidence in the Ministry and 
be followed by its downfall or new elections. Voting estimates 
without discussion not only involves approval of the Govern- 
ment and confidence in it but belief, on the financial side, that 
the estimates have been efficiently and economically prepared 
by the Treasury. The assumption is not only that discussion 
of the estimates naturally leads to discussion of policy but also 
that complete discussion is incompatible with a final vote at an 
agreed time. The consequences have been readily accepted as, 
in the circumstances, inevitable. 

The statement is made at times in England that if the 
estimates were never presented to the House of Commons and 
voted by it, the situation would be the same. However, this 
is true, and is doubtless intended to be accepted, only within 
limits. The fact that in practice such parts of the estimates as 
are discussed are as regularly voted in unchanged form as those 
parts left undiscussed is, as has been seen, a matter of confi- 
dence in the Government of the day and in the Treasury. The 
Government is, after all, responsible in the long run to the 
House of Commons. The development of leadership based 
on this democratic relationship is in part the effect of a tradition 
of financial integrity and efficiency. This confidence and this 
tradition might survive for a time, but they could scarcely sur- 
vive in the long run, if the estimates were not submitted to the 
representatives of the people; and though discussion of the 
estimates in present practice takes the form of criticism of 
policy, that criticism would probably not be long in extending 
itself to financial shortcomings, if any should exist. 

The fact that existing practice in the House of Commons 
with respect to the estimates of expenditures involves ample 
opportunity for discussion of policy, while neglecting altogether 
the financial aspect of things, has not unnaturally resulted in 
proposals for altering this situation. Thus, on one occasion, 
namely in 1919, the estimates were submitted to a Standing 



194 THE CENTRAL GOVERNMENT 

Committee instead of to the Committee of Supply. The hope was 
that some economy might result. In reality, the only proposal 
of the Committee appears to have involved the elimination of 
a bathtub for the Lord Chancellor. Even here, there is clearly 
a distinction between the question of whether the Lord Chan- 
cellor should have a tub, which is a matter of policy, and the 
question of whether the proposed expenditure for the tub was 
greater than it needed to be, which is a matter of finance. At 
all events, the House restored the item 5 and the Govern- 
ment's proposal was thus upheld. A more serious attempt in 
the same connection has been the establishment of what are 
known as Estimates Committees. A committee of this sort was 
first established in 1912 - y and, since that time, the same kind of 
committee has been employed with some regularity. Though it 
is too soon, perhaps, to say that these committees have proved 
to be a failure, they have, none the less, undoubtedly given 
somewhat meagre satisfaction. Their task is extremely difficult 
for several reasons. For one thing, the form in which the esti- 
mates are drawn up is considered by some persons as being 
unduly complicated and difficult. Moreover, even with tech- 
nical assistance, such committees can in general scarcely hope to 
possess the competence to develop criticism of a purely financial 
character in respect of calculations made 'by Treasury experts 
of long experience. In this connection, however, democratic 
theory can easily justify examination of the financial side of the 
estimates by a committee composed of members of the House 
of Commons, even if these members should never propose a 
change. And, finally, perhaps the greatest difficulty in the mat- 
ter results from the practical impossibility of pushing a vigorous 
examination of the estimates and at the same time avoiding 
questions of policy. Yet, as soon as a committee should concern 
itself Vith policy, it would usurp, with various ill results, the 
function of the House of Commons itself. 

The British system of public finance, then, possesses, amongst 
other advantages, that of having the budget consideration ter- 
minated at a given date. However, since this date falls in the 
. first week of August and since the fiscal year has begun on the 
first of the previous April, the spending departments would be 



THE FUNCTIONS OF PARLIAMENT 195 

without funds between those dates, if the situation were not 
anticipated. In reality, what happens is that Parliament, before 
April first, votes, by what are known as Votes on Account, a 
sufficient sum in each case for the work of government to pro- 
ceed on its normal course. Then, when the exact amount for 
the year has been voted in August, a given spending depart- 
ment is entitled to the appropriation voted, less such sums as 
may have been voted on account. This simple arrangement 
would manifestly be possible even if the practical certainty did 
not exist that the estimates will ultimately be voted exactly as 
presented by the Crown ; for it would be known, in any event, 
that something would in the end be voted for every department, 
and no danger would be involved in making lump sum advances 
to a department. 

The anticipated expenditures that are set out in the annual 
estimates do not represent the total amount of public money 
spent in a given year. Some recurring expenses, such for ex- 
ample as the salaries of the judges, are authorized by perma- 
nent Acts of Parliament. They are direct charges on the Con- 
solidated Fund and have not to be voted each year. These 
charges plus the amount of the annual estimates, thus, determine 
the sum total of outlay for the year and, at the same time, the 
amount of money that must be raised, if the budget is to be in 
balance. 

During the time that estimates are being asked for, submitted, 
and coordinated, th^t they are being introduced into the House 
of Commons in their four parts and being discussed in Commit- 
! tee of Supply, the Chancellor of the Exchequer and the Treas- 
ury are simultaneously concerning themselves with the question 
of income. Calculation is made of the several amounts antici- 
pated from the various sources of revenue. The principal of 
these sources, taxation, yields sums determined by two general 
kinds of Acts of Parliament. Some revenue-raising measures 
are passed for an idefinite period of time and, hence, continue, 
until repealed, to be the basis of income. Other Acts are passed 
for .only one year; so that the taxes involved are annual rather 
than continuing taxes. In respect of direct taxation, the income 
tax is an important example of an annual taxj and, amongst 



196 THE CENTRAL GOVERNMENT 

indirect taxes, a good example is the tax on beer. In general, 
annual taxation represents the flexible instrumentality through 
which the budget is balanced. Thus, the amounts of the annual 
estimates plus the amounts of the recurring expenditures for 
the period of a year represent the total anticipated annual out- 
lay and, consequently, the sum that must be raised. If from 
this amount there be subtracted the total revenue reckoned as 
available from existing sources, the difference represents, 
broadly speaking, the sum that must be derived from annual 
taxation or from annual taxation and borrowing. All these 
reckonings are made with great care j plans are laid and decisions 
made 5 and the greatest secrecy is maintained, until the Chan- 
cellor of the Exchequer reveals the fiscal policy of the Govern- 
ment in his eagerly awaited Budget Speech. 

The annual Budget Speech of the Chancellor of the Exche- 
quer is made at Easter. The Chancellor appears before the 
House of Commons, which has, for the purpose, transformed 
itself into a Committee of Ways and Means. All available space 
in the House is crowded with members and with personages of 
the political 'and diplomatic world. The occasion is the most 
important of the year in Parliament. The Chancellor of the 
Exchequer is the principal actor. He makes a speech which has 
become justly famous. He reviews the entire situation of the 
country with regard to public finance. He recapitulates the 
proposals of the Government in respect of expenditure, the 
estimates of which have, of course, already been brought before 
the House, and in respect of borrowing, the condition of the 
public debt, and the like. He then proceeds to the matter for 
which everyone has been eagerly waiting. He sets out the 
fiscal policy of the Government. He states how it is proposed 
to raise the money necessary to make anticipated income equal 
proposed outlay. He introduces before the Committee of Ways 
and Means resolutions incorporating the proposals which he 
has been making. The subsequent debate of these resolutions 
before the Committee of Ways and Means forms the primary 
discussion of revenue policy during the year. As a matter of 
fact, some of the resolutions are discussed and passed on the 
very day of the Budget Speech. The resolutions involved are 



THE FUNCTIONS Of PARLIAMENT 197 

those that propose new taxation or that stipulate for a higher 
rate in the case of an existing tax. According to a standing 
Act of Parliament, the collection of these taxes is begun the 
following day. The substance of all revenue resolutions voted 
is ultimately incorporated into the annual Finance Act ; and only 
the passage of this Act renders definitely legal the taxes and 
rates of taxation proposed. However, the Act that authorizes 
the immediate collection of new taxes or old taxes at an in- 
creased rate stipulates that if the money collected is not subse- 
quently authorized by the Finance Act, reimbursement will be 
made. This has apparently never happened in practice; for the 
revenue proposals of the Government, as well as their proposed 
expenditures, are normally voted in the end exactly as sug- 
gested. On the other hand, the immediate collection of ne\\ 
taxes or of old taxes at a new and higher rate prevents profi- 
teering in respect of the commodities involved. This is mani- 
festly a principal reason why the Chancellor of the Exchequer 
and the Treasury guard certain proposals with such secrecy, 
The whole situation is one to be envied; but it is, also, one 
that, in the absence of similar conditions with respect to leader- 
ship and responsibility, could scarcely be reproduced elsewhere. 
Various matters of detail render the British system of public 
finance more complicated than an account of it suggests. At the 
same time, the system is in its general outlines simple enough, 
The Treasury and the Chancellor of the Exchequer, acting on 
behalf of the Crown, collect and prepare the estimates of ex- 
penditure. These estimates are presented in four parts to the 
House of Commons sitting in Committee of Supply. Osten- 
sibly the estimates, but in reality elements of the policy they 
involve, are debated in this Committee and voted. Forma] 
resolutions voted by the Committee of Ways and Means 
express the opinion of the House that the money should be 
paid out of the Consolidated Fund; and, on these bases, an 
Act of Parliament, the annual Appropriation Act, authorizes 
legally such payment, t On the side of revenue, the initiative 
is likewise with the Cfown. Its proposals, in the form of reso 
lutions, are presented to the Committee of Ways and Means, 
discussed there and voted. The annual Finance Act furnishes 



198 THE CENTRA! GOVERNMENT 

legal authorization for raising the money involved and paying 
it into the Consolidated Fund. 

A final consideration of much importance in connection with 
English public finance and with the control of Parliament over 
it is the matter of the supervision of moneys granted by Act 
of Parliament, after such moneys have been legally authorized. 
This whole question is a somewhat complicated one, involving 
numerous technical details - y but the more important steps in the 
process of supervision indicate the care that is expended in this 
respect. The instrumentalities employed are an officer known 
as the Comptroller and Auditor General and a body known as 
the Committee of Public Accounts. Both are agencies of the 
House of Commons. In their present character, they date from 
the i86o's. 

The Comptroller and Auditor General is a non-political 
official. His position is roughly assimilated to that of a judge. 1 
He is appointed by the Crown, but he holds his office during 
good behaviour. His salary is a charge on the Consolidated 
Fund. He is independent of the Treasury and answerable to 
no minister:* He has direct access to the House of Commons 
and considers himself an agent of that body. He can be re- 
moved only on addresses from both Houses of Parliament. 

The functions of the Comptroller and Auditor General are, 
as his title suggests, two-fold. They are those of control and of 
audit. ' In the first place, the Comptroller and Auditor General 
examines the daily accounts of revenue and other current ac- 
counts j and, more especially, he authorizes, in accordance with 
amounts sanctioned by Act of Parliament, the issuance by the 
Bank of England of credits to the Treasury, in order that the 
Treasury may permit the Paymaster-General to authorize the 
payment of public money to those to whom it is owed. In the 
second place, he annually examines the accounts of the De- 
partments and verifies them by satisfying himself that all 
moneys spent have been applied to the purposes for which they 
were intended by Parliament and that all expenditure is sup- 
ported by proof of payment. He reports the accounts, with 
his comments, to the Public Accounts Committee. 

X V., Ch. XV, p. 236, Mr a. 



THE FUNCTIONS O,F PARLIAMENT 199 

The Committee of Public Accounts is a sessional committee 
of the House of Commons, set up early in the session. It con- 
sists of fifteen members, of whom five form a quorum. In 
practice, the Financial Secretary to the Treasury is a member, 
though a private member; for a member of the Opposition, 
who is likely to be a former Financial Secretary, serves as 
Chairman of the Committee. 

The Committee of Public Accounts, which sits in secret and 
is empowered by Standing Order to send for persons, papers, 
and records, inspects the accounts of the Departments and the 
reports of the Comptroller and Auditor General. This official 
assists the Committee, as do other officials. The Committee, 
after careful and thorough study, reports to the House of 
Commons. Though this study and this report of the Committee 
are made after public money has been spent, special students of 
the subject appear to agree that the influence of the Committee 
is highly salutary on the administration of public finance in 
England. 

3. THE CONTROLLING OF THE EXECUTIVE 

A third great function performed by modern legislatures is 
that of controlling the executive. This control is operative, in 
greater or lesser degree, in all democratic countries, if for no 
other reason and there are several of them because control 
of expenditure involves control of the spenders. However, if 
such control is to be found in all democracies, it is particularly 
typical of the parliamentary system of government. In this 
respect, as in others, English practices form the model. 

The responsibility of the Ministry in England to the House 
of Commons, which is a primary characteristic of the whole 
British system of government, 1 involves a constant control of 
Parliament over the Government. Indeed, control and 
responsibility go naturally hand in hand. Since the peculiar 
type of responsibility under the parliamentary system involves 
disappearance of the Ministry through resignation whenever 
the general policy of the Government proves fundamentally 

1 Cf. Ch. IX, sufra. 



2OO THE CENTRAL GOVERNMENT 

unacceptable to the House of Commons, an obligation rests 
upon the House of Commons to exercise a day by day control 
over the Ministry, in such a way that fundamental disagree- 
ment between the executive and the representatives of the peo- 
ple will be clear and manifest. 

If minor disagreements could cause downfall of the Ministry, 
correct working of the parliamentary system would be stultified. 
In England, such a possibility is obviated largely by the chance 
that the Ministry may make use of dissolution. In practice, 
minor mistakes on the part of the Government merely go into 
the scale against it. On the other hand, if actual and possible 
mistakes were not apparent, the Government might well be- 
come irresponsible. As a matter of fact, control by Parliament 
prevents this. It tends to keep the Ministers constantly con- 
scious of the fact that they will be called upon to give an ac- 
count of what they do. This control is, for the most part, main- 
tained in two general ways.* The first is the constant demand 
in Parliament for injormation about Government action; the 
second is the criticism that is constantly aimed at the Govern- 
ment in PaHiament. These two methods, which are manifestly 
closely related to each other, take various forms, some of which 
are especially important and instructive. 

An instrument of no little interest by which Parliament seeks 
information from the executive is the oral or written question. 
In the House of Commons, Standing Orders form the basis of 
a practice whereby any member may, by following prescribed 
regulations, direct questions at Ministers or other members of 
the House. The regulations, at least in outline, are simple. 
Notice must be given of the questions ; and questions to which 
an oral answer is desired are marked with an asterisk. On the 
early days of the week, at the opening of the sittings of the 
House, "question hour" occurs immediately after a small 
amount of routine business has been dispatched. The questions 
that are set down for oral replies are answered. The Ministers, 
who, because of the notice given, have had ample time to receive 
the best available answers from the Civil Service, either give 
replies of varying fullness and frankness or state that important 
interests of the nation make reply unadvisable. The questions 



TWJi FUNCTIONS OF PARLIAMENT 2OI 

must, among other requirements, not contain an argument; 
and normally no debate follows the answer. The member, at 
the appointed time, rises in his place, and puts to the desired 
minister the question of which notice has been given. After 
the answer has been made, the questioner or other members 
may put supplementary questions. 

Supplementary questions grow out of the answers to oral 
questions of which notice has been given. They possess the 
idditional interest that if they are answered, the replies are 
nade without previous preparation. They, therefore, involve 
renditions of greater spontaneity 5 and unwary Ministers may 
ind themselves in no little trouble. On the other hand, the 
Speaker maintains here, as well as in connection with ordinary 
questions, a tight rein on members who tend to overstep the 
boundaries of recognized decorum. Furthermore, a Minister 
may always reply that he would prefer notice to be given of a 
particular question. 

On the whole, the situation with respect to questions appears 
to be satisfactory. Appraisals of the English practice vary; but 
most people seem to agree that it is well worth while. It is 
in considerable degree reduced to the proportions of a sport 5 
and where the rules of the game are observed in good faith by 
both sides, as they appear generally to be, the institution work* 
smoothly and beneficially. No great imagination is required 
in order to realize that Ministers who are subjected to th< 
constant certainty of being questioned cannot afford to become 
too lax. It is a salutary thing for responsibility that a litera. 
response may be demanded to questions concerning an) 
executive action. 

The House of Commons secures in writing information abou 1 
executive activities, not only in the form of answers to question; 
for which oral answers have not been requested but likewise ir 
the form of papers and documents of various kinds. An indi 
vidual member may, after notice, introduce a "motion for re 
turns." The Government may, in some cases, object on ground 
of public policy. However, if the Government complies witl 
the motion, the result will be the publication, in "unopposec 
returns," of the information desired. Furthermore, the Gov 



202 THE CENTRAL GOVERNMENT 

eminent, on its own initiative, frequently furnishes documents 
of one sort or another. These are "command papers." 

In its effort to secure information, the House of Commons 
not infrequently takes more concerted action than that involved 
in asking questions or requesting documents. Here, again, the 
Government may, likewise, take the initiative. The most 
typical instrumentalities employed in this respect are Commit- 
tees and Royal Commissions. In general, a Committee is set 
up by one or both Houses or by a Department $ whereas a Royal 
Commission is established by the Government. Circumstances 
determine which of these instrumentalities is the more suitable 
in a given case. Apparently, a Parliamentary Committee is 
considered superior to a Royal Commission or a Department 
Committee in respect of definitely political matters. Whatever 
the choice, evidence is taken, information is secured, and a re- 
port is published. % 

While any oral or written information secured through en- 
quiry or otherwise may well involve criticism of the general 
policy of the Government, the most typical criticism of the 
Ministry in England is that which is developed during debate. 
Several interesting and important occasions offer opportunity 
for general criticism of this kind. 

Debate on the general policy of the English Government of 
the day regularly takes place in Parliament at the beginning 
of a session. The occasion is discussion of an Address in reply 
to the Speech from the Throne. In this way, a debate on policy 
follows an ancient and picturesque ceremony. The members 
of the House of Commons are summoned by the Gentleman 
Usher of the Black Rod to the bar of the House of Lords. 
Headed by the Speaker, they proceed there, and they hear, 
amidst much pomp, the reading by the King of his Speech. 
Since this Speech has been written by the Prime Minister, it 
represents a declaration of the policy of the Government. It is 
read again in each House, after the ceremony has come to an 
end and the members of the House of Commons have re- 
turned to their own Chamber. Each House, furthermore, goes 
through a traditional formality of proving its independence of 
royal influence. It gives a first reading to a dummy bill, which 



THE FUNCTIONS OF PARLIAMENT 2O3 

is always the same, and never proceeds further, thus perform- 
ing an action which, though of no intrinsic importance, is un- 
connected with the King's Speech. After this show of inde- 
pendence, an Address is moved in reply to the Speech from the 
Throne. In the House of Commons, the mover and seconder, 
one the representative of an urban constituency and the other of 
a rural, garbed exceptionally in uniform and, likewise excep- 
tionally, equipped with swords, are normally important young 
members of the Government party. The Address moved is 
now always couched in the same formal terms. It expresses 
the appreciation and gratitude of the House for the gracious 
Speech made by the King. The Opposition regularly offers 
amendments to the Address j and debate ensues. Criticism is 
both destructive and constructive. It ranges over the matters 
mentioned in the Speech, as forming the principal elements of 
Government policy. The Opposition attacks 5 the Ministry 
praises and defends. ' So also, the Opposition expresses regret 
for omissions, making this the basis for criticism and for sug- 
gestions as to what a good policy ought to involve. The Gov- 
ernment again supports its own policy. In the end, unless the 
Ministry is destined to fall, the Address is voted as moved; 
but, meanwhile, an occasion has been offered for discussion, 
which frequently extends over several days, of the general 
executive programme. 

A second possible opportunity for general criticism of the 
Government in England consists of discussion of a motion for 
a formal resolution. In theory, any member of the House of 
Commons may, after notice, move a resolution expressing 
general lack of confidence in the Ministry of the day or in- 
volving criticism in some other form. However, since the 
Government has, in practice, almost complete monopoly of the 
time of the House, debate on a resolution of this kind is un- 
likely, except when the Government itself allots some of its 
time to the purpose. In turn, the Government is apparently 
unlikely to accept a challenge of this sort unless it proceeds 
from the leadership of the Opposition. Indeed, this whole 
formal procedure appears to be less congenial to the operation 
of ministerial responsibility in England than other methods of 



2O4 THE CENTRAL GOVERNMENT 

criticism. At the same time, when a motion for a resolution 
is employed, the occasion exists for a wide and thorough debate 
of executive policy. 

A possible, and in some instances a normal, occasion for criti- 
cism of the executive is a debate on a motion for adjournment. 
There exist, in this respect, several variations. Thus, for ex- 
ample, the House of Commons normally adjourns at the end of 
each day's sitting until the next. Such adjournment regularly 
takes place uneventfully according to Standing Order. How- 
ever, a member may, during a sitting, between the time when 
all questions have been completed and the time for the begin- 
ning of public business, move the adjournment of the House 
for a matter of importance ; and if his motion is supported by 
forty members and is found by the Speaker to comply with 
other conditions, the sitting is suspended until evening, when a 
serious debata takes place. This little used procedure, thus, 
makes possible a discussion of a specific matter involving the 
policy of the Government. Indeed, it is the natural way in 
which debate on very rare occasions grows out of questions put 
to Ministers. * In the second place, the House of Commons takes 
a short holiday on certain occasions ; and, on the motion to 
adjourn, a debate of some length takes place. The same thing 
is true when a session of Parliament is, through prorogation 
by the Crown, about to come to an end. The Speaker allows 
the debate to range widely 5 and opportunity for criticism of 
policy is thus afforded. 

Inasmuch as, in an historical sense and in a very definitely 
basic sense, control of the executive by Parliament depends upon 
the power of the purse, discussion of public finance, more espe- 
cially of proposals for expenditure, offers a very real opportunity 
for criticism of the executive. Indeed, as has been seen, the 
House of Commons devotes to such criticism the whole time 
allotted to the examination of the estimates. This fact is not 
only a manifestation of the close relationship between a budget 
of expenditures and a programme of government - y it is likewise 
symbolic of the dependency of control over the executive on 
control over finance. Thus, in the House of Commons, any 
list of the occasions for criticism of the Government must give 



THE FUNCTIONS OF PARLIAMENT 2O5 

an important perhaps the most important place to the twenty 
days in Committee of Supply, when either an expenditure pro- 
posed by the Ministry or an Opposition proposal to reduce a 
Minister's salary offers an occasion for thorough discussion of 
policy. 



CHAPTER XIII 
THE POWERS OF PARLIAMENT 

The Parliament at Westminster is, in legal theory,, the 
supreme law-making authority for the whole British Empire. 
However, from the point of view of actual practice, Parliament 
possesses varying relations with the several different kinds of 
British communities. For example, the practical relationship 
of Parliament to England, Scotland, and Wales differs some- 
what from its relationship to Northern Ireland, differs con- 
siderably more from its relationship to Southern Ireland and 
the other self-governing members of the so-called British 
Commonwealth of Nations, and differs in still another, if not 
so marked, way from various British possessions scattered round 
the world. * 

The present status of Northern Ireland is, roughly, that en- 
visaged in what was for a long time called "Home Rule." This 
formerly important subject of bitter party controversy, from 
being a solution advocated by one brandh of opinion for all of 
Ireland or at least for Southern Ireland, came, in the course 
of time, to be regarded by some persons as offering the possi- 
bility of being extended to the whole of the British Isles. 1 In 
this form, the proposal was known as that of "Home Rule All 
Round." That it was, however, primarily a solution of the 
Irish question is suggested by the fact that, as soon as Southern 
Ireland was granted Dominion status and as Unionist Ireland 
turned out to be the only region to receive home rule, the move- 
ment for further extension of home rule tended to arouse less 
interest. At the same time, the whole subject, under the new 
name of "Devolution," sometimes called "Federal Devolution," 
had appeared at one time to possess no mean chance of success. 

1 For this whole matter, reference may be made to Chiao, Devolution 
in Great Britain (New York, 1926). 

206 



THE POWERS OF PARLIAMENT 2O7 

In 1919-1920, a Speaker's Conference on Devolution, following 
a suggestion of the Government of the day, made an extended 
study of the subject. The Report of the Conference contained 
some interesting suggestions - y but the members were equally 
divided in approving two different proposals for putting Devo- 
lution into effect. No strong movement in this direction appears 
to have developed in recent years. 

The principal argument of a practical kind that has been 
advocated in favour of Devolution in Great Britain is the asser- 
tion that the delegation of considerable powers to law-making 
bodies set up in Ireland, England, Wales, and Scotland would 
greatly relieve the burden of an overworked Parliament at 
Westminster. In other words, the argument is made that ter- 
ritorial Devolution would supplement in an important way thfe 
devolution in Parliament of important functions to grand com- 
mittees and the other changes in procedure that have been 
calculated to save time for Parliament. On the other hand, the 
contention has been made with some force that the plans of 
Devolution so far proposed would not in any appreciable degree 
relieve Parliament of the tasks at present performed. 1 In 
opposition to the various proposals that have been made, a 
serious criticism alleges that the establishment of legislative 
assemblies placed between Parliament and the existing local 
Councils would greatly increase the work of the courts of law, 
which would be frequently called upon to determine whether 
certain powers were contained in the sphere allotted to the 
several new regional assemblies. This objection undoubtedly 
deserves serious attention, though there is some doubt whether 
the experience of Northern Ireland supports with much evi- 
dence the argument involved. On the other hand, the experi- 
ment in Northern Ireland apparently tends to bear out a 
conclusion of reflection, that the best case for Devolution is to 
be made in the somewhat vague terms of sentiment. If Devo- 
lution means more self-government, then it is calculated to 
increase the important, if less tangible, qualities of self-reliance 
and initiative. These qualities, in turn, are characteristics of 

1 V., for this, as well as the following criticism, Laski, Grammar of 
Politics (London, 1925)5 p. 310. 



208 THE CENTRAL GOVERNMENT 

real vitality. Their importance can scarcely be exaggerated. 
"Natonalist" movements exist in Wales and Scotland. Most 
people, it is true, seem to regard these movements as of little 
importance. At the same time, the sentiment involved would 
appear to be a healthy one. It is potentially related to Devo- 
lution as both cause and effect j and conditions may easily be 
conceived in which, however enlightened the policy of the 
central government with respect to these communities, wisdom 
would dictate devolving upon them a much larger degree of 
management of their own affairs. 

The regional governmental arrangement now existing in, 
Northern Ireland was established in 1920 by Act of Parlia- 
ment. The plan establishes a considerable degree of self-gov- 
ernment. The community as a whole is not only represented 
in the Parliament at Westminister like the rest of the United 
Kingdom, is not only divided into local government areas, 
such as Counties and Boroughs, like the rest of the United 
Kingdom j it is, unlike other parts of the United Kingdom, 
possessed of its own regional governmental system, which, in 
broad outline, involves a bicameral Parliament, a formal execu- 
tive the Governor, representing the King a responsible 
Ministry, and a system of law courts. 

The historic Mother of Parliaments, with all its relations to 
various parts of the Empire, remains primarily the legislature 
of "the tight little Island." In respect of this community, 
legal theory, it is needless to repeat, ascribes to Parliament 
legal omnipotence and omnicompetence. 1 An Act of Parlia- 
ment, no matter what its contents, becomes automatically a part 
of the law of the land; for no provisions of law exist that could 
bind Parliament legally. However, in any but a legal sense, 
*here are, of course, many things that Parliament cannot do. 
Theory is modified in terms of many practical considerations 
of fact. What Parliament can do has, in practice, not so much 
effect on what it does do as has the more general question 
of what it ought to do. At the same time, the existence of 
the principle of the legal sovereignty of Parliament offers the 
distinct advantage that the question of what Parliament ought 

1 Cf. Ch. VI and Ch. XII, sufra. 



THE POWERS OF PARLIAMENT 2O9 

to do is not complicated or confused by any question of whether 
or v not it is legally competent to do it. In this way, the 
practical possibility always exists of reducing an issue concerning 
any legislative proposal to the question of whether or not 
good policy approves the proposal, of whether or not the pro- 
posal is in the general interest, of whether or not the proposal 
ought to become law. In this way, the possibility exists in 
practice for the final arbiter to be public opinion. Hence, the 
arrangement may lay claim to being highly democratic. The 
final word concerning what is in the general interest not only 
belongs in principle to the people; no practical obstacle pre- 
vents their speaking the final word. Such an arrangement, it 
may be noted, is in marked contrast with that existing in the 
United States. In respect both of the Federal Congress and 
of the several State Legislatures, the question of what ought to 
become law is likely to be confused with the question of what 
can become law. Constitutional limitations may stand in the 
way of the unanimous judgment of the representatives of the 
people as to what is in the general interest. In theory, it is 
true, public opinion may at any time effect a change in the 
constitutional limitations. In practice, this can scarcely be said 
to be within the realm of possibility. As is well known, the 
final word, for all practical purposes, belongs to the courts of 
law. This arrangement can be, and is, defended; but it cannot 
be reasonably and seriously advocated as democratic. There 
are, of course, many things that neither Congress nor the State 
Legislatures ought to do. On the whole, it is very unlikely 
that they will attempt to do any large part of them; but, in a 
democracy, the final judge should in practice be the people and 
their representatives. In the formulation of their judgments, 
they should be, and normally will be, restrained by the opera- 
tion of numerous principles. The question why these principles 
should not be written into a higher form of law is answered by 
both English and American experience. English experience 
demonstrates that the existence of a technical legal power of 
Parliament to violate fundamental principles, for example 
those contained in the Bill of Rights, does not mean that they 
will be constantly violated. As a matter of fact, they very 



2IO THE CENTRAL GOVERNMENT 

seldom, if ever, are. The argument can be made, without too 
much paradox and with considerable reasonableness, that the 
principal fundamental principles which are suggested by history 
to be sound are stronger in England precisely because they form 
moral rather than legal limitations on the action of Parliament 
On the other hand, experience in the United States does not 
demonstrate, whatever a distrustful opinion in some quarters 
may hold, that failure on the part of American legislatures 
to violate well established principles is to be attributed to the 
existence of constitutional limitations. Considerable experience, 
on the other hand, appears to show that the problem of what 
ought or ought not to be undertaken by legislative action is 
frequently confused by the question of what can be undertaken. 
In practice, the question of what can be done is frequently 
equivalent to the question of what the attitude of a court will 
be. Where, as is so often the case, the limitation alleged to 
stand in the way is couched in vague terms, such for example 
as "due process of law," the decision of the court is based on 
considerations not far, if at all, different from arguments that 
are sure to "have been made in the legislature at the time the 
question was under consideration there. It seems to be a queer 
sort of democracy that allows views which have been able to 
convince only a minority of the representatives of the people 
to prevail when dressed up in legalistic language and presented 
by a few judges, perhaps by a majority of one. 
){ Parliament, then, is restrained by no legal limitations con- 
tained in a higher la,wj for no law exists in England higher 
than that made by Parliament. In a sense, Parliament may, 
in practice, do anything and do it in any manner acceptable to 
public opinion $ and yet public opinion is no light restraint. ( Few 
inquiring foreigners can have failed to observe either thtTspeed 
and sureness with which public opinion is usually formed in 
Great Britain or the force that it possesses. As a matter of 
fact, public opinion should neither be thought of as a fleeting 
and fickle gust of popular sentiment nor regarded as primarily 
a negative force that prevents stupid and arbitrary things from 
being done. Public opinion, of course, varies; and it finds, at 
different times, fundamentally different policies acceptable to 



THE POWEKS OF PARLIAMENT 211 

it. Democracy in general and political parties in particular 
furnish the mechanism for such change* At the, same time, 
public opinion is a complex phenomenon, consisting of many 
elements and operating in many ways. 

Not the least of the component parts of popular sentiment is 
regard for tradition 5 so that, amidst inevitable change, an or- 
derly progress is made possible by a tendency not to abandon 
lightly existing conditions. This situation has an especially 
important bearing on the relationship of Parliament to the 
lesser communities of Great Britain. 1 In legal theory, these 
communities and their governmental powers are "at the mercy" 
of Parliament. Just as they are conceived of as having their 
origin and source in Parliament, so they could, in theory, be 
altered in any way or be abolished by Act of Parliament. In 
practice, no one but an alarmist could find this an unsatisfactory 
position for local communities. Accomplished fact, experience, 
and tradition more specifically the sentiment for "local self- 
government" are stronger than theoretical danger. In gen- 
eral, local communities possess all the power and all the free- 
dom that they could desire. In respect of further extension, 
Parliament is likely to display a willingness to make further 
grants at least equal to the willingness of the local communities 
to accept further responsibility. 

What is called the Sovereignty of Parliament suggests, it 
may be seen, comparison and contrast of the English Parlia- 
ment and the American Congress in two fundamental respects. 
In the first place, Parliament is not legally restrained by the 
fundamental constitutional limitation growing out of the exist- 
ence of a federal system. In law, England possesses a unitary, 
not a federal, system of government. There is, in England, 
no legislative authority "as supreme in its sphere" as Parliament 
is in its sphere. This would involve a legal authority beyond 
the two spheres, competent to fix the two spheres 5 and there is 
no legal authority beyond Parliament Such distribution of 
power as there is in practice and, it may be repeated, the 
localities possess powers that compare favourably in important 
respects with those of the component parts of a federation 

1 Cf . Part V, infra. 



212 THE CENTRAL GOVERNMENT 

i's dependent legally on Parliament. Thus, the contrast is, in 
legal theory, fundamental. At the same time, it would be 
difficult to prove that, in practice, the federal arrangement 
possesses any genuine advantage. 

A federal system of government may easily be imagined to 
exist in which the only limitation on legislative authority is that 
.growing out of the nature of federalism. In other "words, all 
conceivable legislative power might be distributed between two 
authorities legally independent one of the other. Every 
imaginable power would exist either in one sphere or the other. 
This is well known not to be the case in the United States. 
Both the Congress and the State Legislatures are legally re- 
strained not only by the great constitutional limitation inherent 
in the federal system but likewise by specific "Constitutional 
Limitations." TJiis situation, it has been seen, is a second 
important respect in which the Parliament at Westminster dif- 
fers in the matter of legal power from American legisla- 
tures. Yet, here again, it is at least doubtful whether any the- 
oretical adv^tage claimed for the American system actually 
exists in practice. The answer will depend on a choice between 
a distrustful attitude towards democracy and a genuine faith 
in it. Preference for the first attitude means, in practice, leav- 
ing the application of limitations to the decision of judges. 
Choice of the second position involves trusting to the ultimate 
judgment and self-restraint of the people and their representa- 
tives. 

Amongst the considerations that determine modification in 
practice of the theoretical legal omnipotence of Parliament, 
especial importance attaches to the bicameral structure of Par- 
liament and to the inequality of the two chambers. In several 
respects, the House of Commons is definitely superior to the 
House of Lords. This situation is in part determined by law 
and in part by the nature of things. In general, the triumph 
of political democracy in England inevitably ensured the ulti- 
mate superiority of a body with a composition based on popular 
election. At the same time, democratic theory can reasonably 
insist on little more than that the judgment of the people shall 
prevail in the long run. Such theory, if honest, must recognize 



THE POWERS OF PARLIAMENT 213 

that, in the short run, popular opinion may be mistaken or 
that the representatives of the people may not in every decision 
reflect the best judgment of the people. The possibility clearly 
exists that an enlightened few may, in respect of any given 
decision, possess a view of what is in the general interest better 
than that of the people. Such a few may at a given time appre- 
hend better than the representatives of the people what the best 
judgment of the people is. Such considerations tend both 
to justify and to explain the present bicameral structure of the 
English Parliament and the place in it of the House of Lords. 

The constitutional position of the House of Lords rests on 
the legal basis of the Parliament Act of 1911. This great con- 
stitutional Act is probably the most important of modern times, 
and one of the most important of all time. Its adoption marks 
an epoch in the history of the relationship between the two 
Houses of Parliament. The Act put into the more certain 
terms of law the inferior position that the House of Lords 
already possessed by virtue of the less definite terms of the 
interplay of law and custom. The position of the House of 
Lords continues, of course, to be determined by this interplay; 
but the Parliament Act of 1911 increased in great degree the 
importance of the legal element. 

The present constitutional position of the House of Lords is, 
perhaps, best understood when it is compared with the position 
of the Upper House as it existed previous to the passage of 
the Act of 191 1. As an integral part of Parliament, the House 
of Lords was affected by the Act in respect of legislation, 
finance, and control of the executive. 

Before the passage of the Parliament Act, the legislative 
power of the two Houses was coordinate. In law, a bill, other 
than a money bill, could be initiated in either House. Such a 
bill could be presented for the assent of the Crown only if it 
had been passed in identical form by both Houses. Thus, the 
House of Lords possessed the theoretical power of preventing 
any legislation of which its majority did not approve. In 
practice, this majority was normally conservative; and, as a 
result, when public opinion appeared conservative, as manifested 
by a conservative majority in the House of Commons, the two 



214 THE CENTRAL GOVERNMENT 

Houses, impelled by political organization and by the leader- 
ship of the Ministry, could be expected to reach agreement 
without undue difficulty. On the other hand, whenever opinion 
in the country and the majority in the House of Commons 
were liberal, conflict between the two Houses was more likely. 
Whether, at such times, legal theory corresponded with the 
practical situation depended on circumstances. The legal theory, 
of course, was 'that the House of Lords could prevent from 
becoming law any measur^ of which it disapproved. In reality, 
the deciding factor was public opinion. In the event that the 
House of Lords actually represented the wishes of the country 
better than did the House of Commons, the legal theory and, 
by the same token, democratic principles could prevail. If, on 
the other hand, the position of the Lords represented their 
Special interests rather than the opinion of the people, they 
were, in practice, obliged to give way under pressure, includ- 
ing threats if necessary. The passage of the Parliament Act 
itself was a good example of this. 1 

Since Jfhe adoption of the Parliament Act of 1911, the legal 
power of the two Houses with respect to ordinary legislation 
is no longer coordinate. A bill may, on certain conditions, be 
presented to the Crown for assent without having been passed 
by the House of Lords at all. According to the provisions of 
the Act, any public bill, other than a money bill or a bill for 
extending the legal duration of the House of Commons, may, 
if passed by the House of Commons in three successive sessions 
in a period of not less than two years, become law upon re- 
ceiving the assent of the Crown. The extreme legal power of 
the Lords is, thus, that of delaying the passage of a bill for 
a period of two years. For such a situation to develop in prac- 
tice, however, several conditions must exist. The majority in 
the Commons must be uncommonly persistent in their belief 
that a law is needed j and this belief must be consistently sup- 
ported by public opinion. Opposition by the Lords must be 
equally persistent and consistent. As a matter of fact, experience 
would seem to show that this combination of conditions is likely 

1 V.,thCh., txfra. 



THE POWERS OF PARLIAMENT 

to be extremely rare. Exceedingly little legislation has been 
passed in accordance with the terms of the Parliament Act 

Even before 1911, the House of Lords was recognized to 
possess financial power inferior to that of the House of Com- 
mons. The Lords were without initiative in respect of money 
bills, and, hence, by a logical extension, without power of 
amendment. However, since no bill could formally become 
law without the consent of both Houses, the House of Lords 
never entirely abandoned its claim that it could refuse to pass 
a money bill. When it attempted in 1909 to assert this claim 
in practice, the result was the passage of the Parliament Act of 
1911, which resolved the question against the Lords. Accord- 
ing to the provisions of the Act, the House of Lords is now 
practically without financial power of any sort. If a bill certified 
by the Speaker of the House of Commons to be a money bill is 
presented to the House of Lords thirty days before the end 
of a parliamentary session, the bill may become law, upon 
receiving the assent of the Crown, even though the Lords fail 
to pass it. 

Inasmuch as the third great function of Parliament, control 
over the executive, is not directly based on law, the Parliament 
Act of 1911 had less definite effects in this respect than in 
respect of legislation and public, finance. Long before 1911, the 
general principle was well established that the Ministry is re- 
sponsible to the House of Commons alone. However, since 
responsibility is a complex and a somewhat intangible phenom- 
enon, the rule that the Government was responsible only to 
the House of Commons meant primarily that resignation of 
the Ministry normally followed in practice directly upon action 
of the House of Commons. This, in turn, meant that merely 
the immediate cause of the fall of a Government was to be 
sought in this House. The lack of confidence, of which a 
specific act was only a definite indication, might represent a 
situation from which the influence of the House of Lords was 
not necessarily absent. This remains, in general, true at the 
present time. Hence, since the effect of the Parliament Act of 
1911 was to weaken the legal rather than the moral force of 
the House of Lords, no d^inite generalization appears possible 



2l6 THE CENTRAL GOVERNMENT 

concerning a difference in the position of the Lords with respect 
to the executive before and after 1911. Clearly, the twin phe- 
nomena of demand for information and of criticism are not 
outside the sphere of action of the House of Lords. A Govern- 
ment possessed of the firm confidence of the House of Com- 
mons but not of the House o Lords, though it will have cause 
for worry, is not likely to fall from power. If a Government 
possesses the confidence neither of the House of Lords nor of 
the House of Commons, it will certainly fall, except in the un- 
likely contingency that it is supported by public opinion. If 
it falls, circumstances alone will determine whether the- House 
of Lords had a real, though not a formal, part in the process. 
Even before 1909, conflict between Liberal Governments 
and the House of Lords gave rise to indications that the powers 
of the Lords were likely to become subject to attack. Indeed, 
some attention was given in the House of Lords itself to the 
problem of reform, with a view to anticipating efforts from 
the outside. However, the proposals made in this way were 
for the most part concerned with the composition rather than 
with the powers of the House of Lords. In the event, nothing 
concrete had been accomplished when, in 1909, the House of 
Lords rejected the Finance Act of that year, on the grounds 
that Mr. Lloyd George, the Liberal Chancellor of the Ex- 
chequer, had introduced into it, without a mandate from the 
people, the far-reaching principle of the taxation of unearned 
increment in respect of real property. The issue was, thus, 
squarely joined between the two Houses. Under the leader- 
ship of the Prime Minister, Mr. Asquith, dissolution was de- 
cided upon, hd new elections were held early in 1910. Though 
the decision of the voters was not so clear-cut as it might have 
been, the Liberals were maintained in power $ and the Lords, 
accepting the elections as a popular mandate, passed the Finance 
Act. The Liberal Government then turned its attention to 
curtailment of the powers of the House of Lords. A truce in 
the conflict followed upon the death of Edward VII (1901- 
1910)5 but the efforts at conciliation on the part of the new 
&ng, George V (19101936), as well as those of a group of 
members from both Parties in both Houses, were unsuccessful. 



THE POWERS OF PARLIAMENT 217 

New elections were held late in 19105 and Mr. Asquith, in 
announcing that dissolution had been decided upon, gave it to 
be understood that the King had promised to create, on the 
advice of the Government, enough new peers to overcome op- 
position in the House of Lords, if such opposition should con- 
tinue after a favourable verdict on the part of the electorate. 
The elections again maintained the Liberal Government in 
power y and, though opposition on the part of the House of 
Lords gave some evidence of causing the bitter conflict to be 
drawn out, the threat of the creation of new peers was effica- 
cious. The Parliament Act of 1911 was passed by both Houses 
and approved by the Crown. 

The question of House of Lords reform cannot be said to 
have been settled by the Parliament Act of 1911. The issue 
is scarcely a wholly dead one. Some discussion of the matter 
has takea place in the period since 1911, and the issue may be 
seriously raised again at some point in the future. The whole 
question of the bicameral system is involved, especially as it 
concerns the House of Lords in its present and its possible 
future form. Reform, in turn, might involve the composition 
of the House of Lords, its powers, or the two in their inter- 
relationship. However, on the whole, reform in composition 
appears unlikely in the absence of change in powers. Certainly 
the Lords themselves seem interested in such reform only as a 
means to securing more power. On the other hand, any real 
reversal of history in the matter of power would involve 
changed conditions that cannot be readily foreseen. For the 
moment, the question is whether the House of Lords serves 
any useful function. Though the negative answer has been 
argued with considerable force, 1 an answer in the affirmative 
was persuasively made in 1918, after a study by a Conference 
on the Reform of the Second Chamber, presided over by Lord 
Bryce. The Report of the Conference suggested that the House 
of Lords might serve four useful ends. In the first place, the 
suggestion was made that the practice of limiting the time of 
debate in the House of Commons made further examination 
and revision of measures highly desirable. In the second place, 

1 V., e.g., Laski> The Problem of a Second Chamber (London, 1925). 



THE CENTRAL GOVERNMENT 

it was proposed that non-controversial bills might well be in- 
troduced into the House of Lords and assured of easier passage 
through the Commons by careful attention in the Lords. Again, 
the Report maintained that the House of Lords served a useful 
purpose in delaying measures, especially those of a fundamental 
character:, until public opinion should be clearly formed with 
respect to their principles. And, finally, the House of Lords 
was asserted to be a suitable arena, especially when the House 
of Commons should be otherwise occupied, for extended discus- 
sion of such far-reaching matters as foreign affairs. 

On the whole, a majority of the people of the country appear 
to remain favourable to the existence of the House of Lords. 



CHAPTER XIV 
IMPERIAL RELATIONS 

The discrepancy between legal theory and actual fact that is 
so pronounced a characteristic of the British Constitution is par- 
ticularly marked in the case of the power of the Parliament 
at Westminster with respect to the British self-governing Do- 
minions. These Dominions are, of course, the most important 
elements of what has long been known as the British Empire. 
As a matter of fact, this priority has, as is well known, caused 
in recent years far-reaching modification of the whole prevailing 
idea of empire. The existing situation is, like so many things 
British, the product of long historical development and the 
result of peculiar conditions. 

The self-governing Dominions are to be contrasted not only 
with the United Kingddm, with which the Channel Islands 
and the Isle of Man are officially grouped 5 they are likewise 
to be distinguished from the remainder of "His Majesty's 
Dominions". Though this latter category technically includes 
such things as Dependencies, Protectorates, Spheres of Influ- 
ence, Mandated Territories, and Areas of Chartered Companies, 
a consideration of British imperial relations involves, in addition 
to the self-governing Dominions, more especially the Crown 
Colonies and India. 

The list of British self-governing Dominions is composed, at 
the present time, of Canada, Newfoundland, Australia, New 
Zealand, the Union of South Africa, the Irish Free State, and, 
perhaps, Southern Rhodesia. The administrative relations of 
these Dominions with the British Crown are managed by the 
Dominions Office. At the head of this Department is the Sec- 
retary of State for Dominion Affairs, an official created in 1925. 
Previous to the beginning of the nineteenth century, business 

219 



220 THE CENTRAL GOVERNMENT 

with the British possessions was handled by the Home Secretary. 
When a Secretary of State for War and the Colonies was e- 
tablished in 1801, colonial affairs were transferred to the hands 
of this new officer. The duties involved were found, at the 
time of the Crimean War, to be so heavy that, in 1854, a 
Secretary of State for the Colonies was created. Relations 
with the self-governing Dominions were handled by this officer 
until 1925. 

The self-governing Dominions, as the term implies, pre- 
sent, practically speaking, many resemblances *to separate and 
independent states. In respect of internal affairs, the Domin- 
ions possess their own governments, which they conduct with- 
out hindrance; and, recently, they have assumed certain 
attributes of independent states in connection with foreign 
affairs. In this latter respect, they are, for example, members 
of the League of Nations ; and they undertake, through their 
own representatives, direct relations, including the making of 
treaties, with several foreign countries. 

The large measure of political freedom possessed by the self- 
governing Dominions is striking evidence of the undoubted 
genius of the British in matters of government. It is evidence, 
in particular, that, in respect of colonial policy, they have dis- 
played much practical wisdom, the simple, but rare, wisdom 
which is involved in learning from experience. The American 
Revolution served as a salutary lesson. It had much to do 
with impressing on Great Britain the inevitable working of 
economic forces and the importance and necessity of colonial 
self-government. Thus, Canada, from the last quarter of the 
eighteenth century on, received careful treatment, calculated, in 
conditions rendered especially delicate by the presence side by 
side of British and French populations, to .reduce friction with 
the Mother Country to a minimum. After abortive uprisings 
in 1837-1838, Lord Durham was sent out to Canada as 
Governor-General and High Commissioner. His study of the 
situation resulted in a Report that is still regarded as a classic 
official paper. His -analysis and recommendations are usually 
considered to have influenced materially the subsequent history 
of the relations of Great Britain with self-governing Dominions. 



IMPERIAL RELATIONS 221 

in Canada, the immediate effect of the Durham Report was 
the establishment of responsible government ; and later, in 1867, 
a federal union was set up by the British North American Act, 
which now serves as the Constitution of Canada. Newfound- 
land was granted representative government in 1832 and re- 
sponsible government in 1855. Its constitutional system was, 
for economic, financial, and other reasons, indefinitely suspended 
in 1934. The Commonwealth of Australia was established in 
1900. Before that time, the several Colonies that subsequently 
became States of the Commonwealth were usually treated 
separately, though as early as 1855 all were together granted 
responsible government. New Zealand was established as a 
distinct Colony in 1841, and it received representative govern- 
ment in 1852, responsible government in 1856, and a unitary 
system in 1876. In 1909, the Union of South Africa was 
formed of four Colonies that had previously been separately 
granted first representative government and then responsible 
government. Southern Ireland, as has been seen, assumed 
Dominion status in 1922 as the Irish Free State. Southern 
Rhodesia, by a close vote in a referendum, declined in 1922 to 
join the Union of South Africa. It was granted responsible 
government in 1923. Its position is somewhat anomalous. It 
comes under the Dominions Secretary, though it is not tech- 
nically a Dominion. In 1934, its Parliament petitioned for 
Dominion status. 

The central governments of the self-governing Dominions 
are in their general outlines similar to the system of the United 
Kingdom. In the first place, there is a formal executive, cor- 
responding to the King. He'is, in fact, the King's representa- 
tive, being known usually as the Governor-General. The Irish 
Free State, however, abolished this official at the end of 1936. 
Incidentally, the King is represented by analogous agents in the 
several Canadian Provinces and Australian States, which are 
component parts of federal systems, and in the Provinces of 
South Africa, which stand in a technically unitary relationship 
to the Union. In the second place, there is a bicameral legis- 
lature in the Dominions other than the Irish Free State, which 
abolished its Senate in 1934, and in some of the constituent com- 



222 THE CENTRAL GOVERNMENT 

munities of a few of the Dominions. Finally, real executive 
functions are performed by ministers responsible to the popular 
branch of the legislatures. In this way, the characteristic fea- 
ture of the parliamentary system is reproduced in the self- 
governing Dominions. 

In the evolutionary process by which the relations between 
the several Dominions and their position in the Empire have 
been developed, an exceedingly important part has been played 
by the Imperial Conference. The origin of this institution is 
to be traced to the year 1887, at which time a meeting was 
made possible by the fact that the Prime Ministers of the several 
self-governing Dominions were present in England -on the oc- 
casion of the Jubilee of Queen Victoria. In the period before 
the World War, similar meetings, called "Colonial" Confer- 
ences, were held in 1897 and 1902$ and "Imperial" Con- 
ferences were held in 1907 and 1911. Corresponding with the 
change in title of the Conference was the fact that, before 1907, 
the presiding officer was the Colonial Secretary, whereas, be- 
ginning in 1907, the Prime Minister assumed the presidency. 
During the War, the chairmanship reverted to the Colonial 
Secretary - y and the Conference, which was called the Imperial 
War Conference, held sessions in 1917 and 1918 concurrent 
with those of the Imperial War Cabinet. 1 Since the War, 
Imperial Conferences have been held, beginning in 1921, at 
frequent intervals. The Conference is composed of the Prime 
Minister of Great Britain, who seiVes as President, the Secre- 
tary of State for Dominion Affairs, who serves as Chairman in 
the absence of the President, the Prime Ministers and other 
Ministers of the self-governing 'Dominions, and the Secretary 
of State for India. In 1923, the Conference was divided, so 
to say, into political and economic parts, through the holding 
of an Imperial Economic Conference contemporaneously with 
the Imperial Conference. The Imperial Conference of 1931 
decided on the summoning of an Imperial Economic Confer- 
ence in Canada for July of 1932, which, known as the Ottawa 
Conference, aroused the interested attention of world publicists. 
The Conference, after various discussions of trade agreements 

1 Cf. Ch. IX, p. 122, supra. 



IMPERIAL RELATIONS 223 

and the monetary and financial question, effected certain com- 
promises between what proved to be divergent interests and 
aims on the part of Great Britain and of the Dominions. 

In general, the legal basis for the governmental organization 
of the Dominions is an Act of the British Parliament. Parlia- 
ment in each case passed the Act involved and, thus, in theory, 
gave legal existence and authority to the several Dominion gov- 
ernments. Theoretically, Parliament could, in turn, abolish the 
constituent Acts or change them in any manner that might be 
desirable. Indeed, an Act like the British North American Act, 
which serves as a Constitution for the Dominion of Canada, 
cannot be formally amended at all except by the Parliament at 
Westminster. In the case of other Acts, like that for the Com- 
monwealth of Australia, for example, in which provision is made 
for its alteration by Australian governmental processes, the 
theory would seem to be that since the Act gives legal force 
to such alteration, Parliament merely accomplishes indirectly 
what it is legally empowered to accomplish directly. However, 
in practice, it is scarcely conceivable that the Parliament at 
Westminster, in which, incidentally, the self-governing Do- 
minions are, of course, unrepresented, should attempt in any 
real sense to exercise this part of its power. This is not to say 
that Parliament will never in the future pass another Act affect- 
ing the Dominions. Parliament, on the contrary, will probably 
pass several such Acts from tTme to time; but they will not 
represent an unhampered use of discretion or exercise of will 
on the part of the two Houses at Westminster. For practical 
purposes, the object attempted must be known to be acceptable 
to the Dominion or Dominions involved and, indeed, the initia- 
tive is likely to proceed from that source. Recent decisions of 
Imperial Conferences, more especially of the Conference of 
1926, have aroused much interest with respect to this kind of 
imperial relations. 

An Act of Parliament of 1865, known as the Colonial Laws 
Validity Act, was passed with a view to clearing up uncertain- 
ties about the law-making powers of colonial legislatures and to 
establish plainly the principle that these legislatures were not 
bound in their law-making power except by Acts of Parliament 



224 THE CENTRAL GOVERNMENT 

intended to be applied to the colonies. This exception inevitably 
involved the practice of Judicial Review 5 and the situation was, 
thus, roughly analogous to that existing in the United States. 
Acts of Parliament at Westminster that concern the Dominions 
correspond to a "rigid" constitution; Dominion legislation in 
conflict with these Acts is null and void; and such conflict is 
determined by judicial decision of the highest Dominion courts, 
with the possibility in some cases of appeal to the Judicial Com- 
mittee of the Privy Council. 

In 1931, an historic attempt was made to regularize the legal 
position of the self-governing Dominions. The immediate 
background was formed by an important declaration on the part 
of the Imperial Conference of 1926 concerning the status of 
the Dominions. A Report of that Conference stated that the 
United Kingdom and the Dominions "are autonomous com- 
munities within the British Empire, equal in status, in no way 
subordinate one to another in any aspect of their domestic or 
external affairs, though united by a common allegiance to the 
Crown, and freely associated as members of the British Com- 
monwealth of Nations." This exceedingly important principle 
received % the careful attention of the Imperial Conference of 
1930, which decided upon certain provisions calculated to give 
practical application to the principle. The recommendations 
that were made were incorporated into the epoch-making Statute 
of Westminster. This measure*was passed by the Parliament 
at Westminster on December n, 1931, and subsequently by 
the Parliaments of all the Dominions. The general legal situa- 
tion established is this: at present, an Act of the Parliament at 
Westminster becomes a part of the law of a Dominion only 
when the Dominion has expressly consented to it. 

The difference between legal theory, however much clarified 
by the provisions of the Statute of Westminster, and actual 
practice in respect of the British self-governing Dominions gives 
to the Dominions a curious position. However, if theorists, 
because of apparent anomalies and inconsistencies, find some 
difficulties in formulating a clear-cut abstract account of the 
situation, the fact remains that the practice is on the whole 
satisfactory. For practical purposes, the self-governing Domin- 



IMPERIAL RELATIONS 225 

ions, as has been seen, possess the principal attributes of inde- 
pendent states. This situation of fact explains in large measure 
the attitude that the Dominions have assumed towards what has 
been called Imperial Federation. During the World War and 
in the period immediately following the War, the part played 
by the Dominions in the War gave rise in certain quarters to 
considerable support for the idea of a federation among the 
various self-governing Dominions and the British Isles. Instead 
of an at least theoretical dependence of the Dominions on West- 
minster, equality or mutual interdependence was contemplated $ 
and the suggestion was even heard that the capital of the Em- 
pire or of the British Commonwealth of Nations might be 
moved from London to some other spot. At first glance, such 
a proposal might be supposed to have been readily accepted by 
the Dominions. In general, a community possesses greater 
power and dignity in a federal relationship than in a unitary 
one. As a matter of fact, the plan appears to have had much 
more support in Great Britain than in the Dominions. Indeed, 
the attitude of the Dominions has been such that the question 
of Imperial Federation may be said to be a dead issue. The 
Dominions are apparently unconcerned by the theoretical possi- 
bility that their relationship with Westminster may remain in 
legal principle a unitary relationship. They are apparently 
satisfied with the assertion in 1926 of "equality of status" and 
with the subsequent passage of the Statute of Westminster. 
Whatever may be the theoretical difficulty involved, the Domin- 
ions possess, in reality, a position superior in some respects to 
that of equal members in a federation. They are, for all prac- 
tical purposes, assured of the support, moral, naval, and other- 
wise, of the British government; and yet they are relieved of 
such important obligations as that of contributing through tax- 
ation to the upkeep of the navy. In general, the whole situation 
may perhaps be considered, as has been suggested, evidence of 
the English genius for solving governmental problems in a 
practical way, unhampered by the requirements of a rigid logic. 
The legal and actual relations of the Parliament at West- 
minster to Crown Colonies present no marked difficulties of 
principle. These Colonies, which are under the Colonial Secre- 



226 THE CENTRAL GOVERNMENf 

tary, are of several varieties, ranging from those that have no 
legislatures to those that have elected assemblies and possess a 
substantial amount of self-gove/nment. With respect to all of 
them, Parliament, though the Crown Colonies are not repre- 
sented in it, is recognized to possess the power to pass any 
legislation that appears desirable. In practice, it passes, from 
time to time, fairly numerous Acts. From an extra-legal point 
of view, Parliament can no doubt be regarded as limited by the 
opinion of responsible elements in the communities involved j 
but it is not, as in the case of the Dominions, restricted to 
legislation proceeding from initiative outside itself. In practice, 
furthermore, Parliament has neither the time nor the com- 
petency constantly to deal in detail with colonial government j 
and, as a result, it generally legislates in terms of broad prin- 
ciple, delegating substantial discretion to the Executive. 

India stands in a position that is in several ways peculiar. 
It is not part of the British Empire, but an Empire itself. It 
possesses considerably less self-government than the Dominions; 
yet it possesses more than the majority of Crown Colonies. 
Though spmet Indians manifest a strong sentiment in favour 
of independence, the announced British policy is encouragement 
of gradual development towards Dominion status. 

The Indian Empire, with a population of nearly three hun- 
dred and fifty millions, with exceedingly complex race and re- 
ligious problems, and with the widest variety of language and 
other conditions, is, so far as its relations with Great Britain are 
concerned, composed of Native States and British India. The 
relationship of Great Britain to the Native States is one that 
is known as "paramountcy." It is a peculiar relationship, based 
on treati^, on custom, and on political practice. In general, the 
Native States are protected territories. Most of them are very 
small, though a few are of considerable size. In their internal 
affairs, they are ruled, for the most part autocratically, by 
native princes or chiefs. Great Britain furnishes advisers for 
them, and she exercises complete control over their foreign 
relations. British India, divided into eleven provinces, is gov- 
erned by the King-Emperor through a Governor-General, or 
Viceroy, with the assistance of other officers and agencies. The 



IMPERIAL RELATIONS 227 

Governor-General is -appointed for five years, but his term of 
office may be extended. 

In Great Britain, the direction of Indian affairs is in the 
hands of the Secretary of State for India, who is, of course, 
responsible to Parliament. There is a Council of India, com- 
posed of from ten to fourteen Indian ex-officials. The Secretary 
of State determines the size within these limits, and chooses the 
members. The number has recently included two Indians. The 
Council is appointed for seven years j but its term may, for 
special reasons, be extended by five years. It meets weekly or 
oftener, and serves, in general, in an advisory capacity to the 
Secretary of State. Though the Secretary may in most matters 
disregard the advice of the Council, the Council's decision is 
in some cases, such for example as in the expenditure of India 
revenue, required by statute. 

The Secretary of State for India and his Council were estab- 
lished in 1858, at the time that Great Britain, following the 
Mutiny, took over by Act of Parliament the governing of India. 
Before that time, the British Government had, by a series of 
statutes regulating the East India Company, assumed an in- 
creasingly large part in Indian affairs. The East India Com- 
pany, for its part, beginning as a trading organization, had, in 
the course of the eighteenth century, acquired wide control in 
India. It did this in part by conquest, in part by treaty, and 
in part by grant from a nominal Emperor at Delhi. Great 
Britain recognized the Company as a ruling body for the first 
time by statute in 1773. For about half a century after 1858, 
Parliament passed numerous Acts with a view to extending 
representative government in India and to giving Indians some 
part in their government. Altogether, about fifty statutes deal- 
ing with India were in operation when, in 1915, the Govern- 
ment of India Act of that date supplanted all of them through 
repeal or consolidation. Further advance was made by the 
Government of India Act of 1919, through which a somewhat 
complicated system of government, involving notably a degree 
of responsible government in the provinces, was set up. This 
system, after a trial period of ten years, was subjected to care- 
ful study and discussion. A Royal Commission, known as the 



228 THE CENTRAL GOVERNMENT 

Simon Commission, was app6inted in 1927$ and, after a trip 
to India, it issued a two-volume Report in I93O. 1 Several 
committees investigated various aspects of Indian affairs j and 
three Round Table Conferences sat in 1930, 1931, and 1932. 
In 1933, a Joint Select Committee on India Constitutional Re- 
form, consisting of thirty-two members divided equally between 
the House of Lords and the House of Commons, was announced 
by the Government. The Committee called into consultation 
representatives from British India and from the Native States. * 
Finally, a bill was approved, which, in substantially the same 
form, was passed as the Government of India Act of 1935. 

This latest stage in the history of relations between India 
and Great Britain will probably be regarded by the student of 
the future -as a highly important landmark. The Act appears 
to lay the basis for almost limitless development. Responsible 
government is substantially increased in the provinces j and it 
is even extended, though with safeguards, to the central govern- 
ment. Perhaps most important of all, provision is made for 
joining the Native States and British India in one great federal 
structure. ^Thus, on the greatest scale ever known, federation 
is to be attempted of communities displaying more differences 
than are anywhere found in the history of federalism. The 
Indians appear to be in a position to make what they will of 
their future. 

Cmd. 3568, 3569 (1930). 



SECTION 3. THE JUDICIARY 

CHAPTER XV 
THE ADMINISTRATION OF JUSTICE 

I. JUDGES AND COURTS 

In England, as elsewhere, the principal agents who compose 
the judicial branch of government are, of course, judges. The 
judges, frequently sitting one at a time, are in turn the principal 
constituent element of modern English courts. A court is an 
institution, though the expression is also commonly applied to 
the place at which a court holds its sessions. As an institution, 
courts have as their general function the application of the law 
to individual cases. 

The English judiciary may be regarded as having become 
an autonomous branch of government in the Middle Ages, when 
the three great Common Law Courts and the Court of Chan- 
cery became established. 1 In addition, not only did arrange- 
ments for appeal exist, arising naturally out of the fact that the 
great Courts were developed from the Curia Regis; but, with 
the passing of time, other courts were set up. Sir Edward 
Coke (1552-1634) describes seventy-four as operative in Eng- 
land. At the present day, three courts may be said to perform 
analogous work. The change is to be attributed to reorganiza- 
tion and consolidation that were, for the most part, the accom- 
plishment of the nineteenth century. The existing system of 
courts is Vnarked by a high degree of unification. 

According to a terminology encountered at times, courts are 
divided one from the other always horizontally and, sometimes, 
vertically. The concept of a horizontal division is applicable 

1 Cf. Ch^VII, p. 80, supra. 

229 



23O THE CENTRAL GOVERNMENT 

Because the courts of a system are commonly arranged in a hier- 
irchy. The notions of inferior, superior, and supreme courts, 
of local and central courts, naturally give rise to the idea of 
courts placed one above the other and, hence, separated one 
from the other by a horizontal line or plane. On the other 
hand, if two or more courts are to be thought of as being on 
the same plane, a separation between them may be conceived 
as made by a vertical division. 

These concepts are in a general way applicable to the modern 
English judiciary. As might be imagined, horizontal division 
of the courts exists. Thus, local courts are to be distinguished 
from central courts j and the courts in one or both categories 
are separated by horizontal subdivision. Moreover, almost 
throughout the whole system, a vertical division is made. The 
result is what may be called "a- double hierarchy." The two 
hierarchies involved are respectively the civil courts and the 
criminal courts. 

The vertical division of the courts in England is based on 
a relatively simple two-fold classification of the business with 
which the c courts deal and on the general belief that a different 
court should deal with each kind of business. The business of 
the courts, of course, consists for the most patf of cases-, and 
the distinction between criminal cases and civil cases is, in turn, 
based on the subject matter involved. Thus, in England, if a 
case or controversy involves a crime, it is heard in a court of 
one hierarchy; if it involves a civil matter, it is heard in a court 
of the other hierarchy. 

Distinction between crimes and acts giving rise to civil actions 
involves certain technicalities, kndwledge of which is for the 
most part the possession of the lawyers. On the other hand, a 
layman is capable of understanding certain general aspects of 
the difference. Indeed, he is probably instinctively aware of 
the principles involved. For example, we all feel somehow 
that persons who perpetrate certain deliberate acts oiight to be 
punished. If we should hear the suggestion that a man who 
has been apprehended stabbing another might be freed upon 
paying the doctor's bill for the injured party, we should feel 
that this was not enough. We should feel that "something 



THE ADMINISTRATION OF JUSTICE 23! 

ought to be done" to the man who has done the stabbing, that 
he ought to be punished and made an example of to those who 
might attempt a similar act. This, in reality, looks at stabbing 
from a social rather than from an individual point of view. As 
a matter of fact, a crime may be defined as an act regarded as 
being a violation of the peace and dignity of society. The 
person who is stabbed is, of course, in an immediate sense in- 
jured j but this is only the individual or civil aspect of the matter. 
The wrong to the community transcends that done to the in- 
dividual. Incidentally, in England, the King symbolizes society 
or the community j and a crime was early defined in effect as 
a breach of the King's peace. If a wrong is felt to fall short 
of possessing an anti-social character, it is civil in character. Such 
wrongs, in general, grow out of breaches of contract or out of 
what are known as torts, that is, such wrongs as slander, fraud, 
trespass, and the like. All these wrongs, in so far as they are 
individual matters, lend themselves to redress, but not, as in 
the case of crimes, to punishment. Some acts, such as injuries 
to the person and defamatory libel, are both a crime and tortj 
and, in general, a civil action may arise out of any crime by 
which an individual is caused damage. However, though in 
respect of these matters the same act may, with certain excep- 
tions, give rise to both a civil and a criminal case, only in very rare 
instances are redress and punishment secured in the same case. 
As a general rule, a civil and a criminal <Jase, even when they 
grow out of the same act, involve separate and distinct pro- 
ceedings. 

The vertical division of English courts into criminal and 
civil courts naturally does not extend all the way to the top 
of the system. This is particularly true of the Privy Council 
and the House of Lords, the two courts that form the apex 
of the English system. 

The Privy Council, or more strictly the Judical Committee 
of the Privy Council, though it is one of the two highest courts 
of the land, is not a part of the general system of courts. It 
hears appeals in the last instance from the Dominions, from 
the Colonies, from India, from courts established by the Crown 
in 'Protectorates or Mandated Territories, from the Channel 



232 THE CENTRAL GOVERNMENT 

Islands, from the Isle of Man, from prize courts anywhere in 
the Empire, and from the Ecclesiastical Courts in England. 
The Judicial Committee contains in its membership some of the 
highest judges in England, together with a certain number of 
holders of high judicial office from the Dominions and from 
India. After a conclusion has been arrived at by the Judicial 
Committee, a speech is delivered expressing the opinion of a 
majority. No dissenting opinion is given. Strictly speaking, 
the Judicial Committee does not hand down a decision, but 
offers its humble advice to the King. The decision is theoreti- 
cally that of the King, and it is expressed through an Order in 
Council. In these and other respects, the Judicial Committee 
of the Privy Council differs from the other supreme court of 
England, a direct descendant like itself of the Curia Regis, that 
is to say, the House of Lords. 

The House of Lords is 'the highest court in the regular ju- 
dicial hierarchy of England, Wales, Scotland, 1 and Northern 
Ireland. In this respect, it is essentially an appellate tribunal, 
though it possesses likewise a certain relatively unimportant 
original jurisdiction. Its appellate jurisdiction can in certain 
aspects be traced back beyond the time when the House of 
Lords became one House of a bicameral Parliament. This is 
striking evidence of a time when legislatiye and judicial activi- 
ties were not distinguished. At present, a strong case can prob- 
ably be made out against the necessity or desirability of main- 
taining the traditional appellate jurisdiction of the Lords. In- 
deed, this jurisdiction was actually abolished in 1873 by the 
principal nineteenth century Act of Parliament that brought 
about reorganization of the judiciary. However, owing to the 
strength of public feeling for tradition, the jurisdiction was, 
within two or three years, revived and placed on a statutory 
basis. 

When the House of Lords sits for the purpose of transacting 
judicial business, the meeting is in theory a regular meeting of 
the House of Lords. In practice, however, no member who 

1 It should be noted that an account of the English Judiciary applies 
specifically to England and Wales. Scotland has its own judicial system, 
as has Northern Ireland. 



THE ADMINISTRATION OF JUSTICE 

is not learned in the law has sat at such a meeting sjnce about 
the middle of the nineteenth century. Before 1873, the House 
of Lords sometimes contained only one or two members of high 
judicial quality; and, as a consequence, advice on matters of 
law was sought from judges of the other regular courts. On the 
occasion when the appeal jurisdiction of the House of Lords 
was, after abolition in 1873, restored in 1875-1876, authoriza- 
tion was made by Act of Parliament for the creation of non- 
hereditary Lords of Parliament, who should serve as Lords 
of Appeal. 

At present, there are seven Lords of Appeal in Ordinary. 
They are made peers for life with the rank of Baron. While 
on active service, they receive each a salary of 6,000 a year 
and, upon retirement, an annual pension of 4,000. The Lord 
Chancellor is, of course, the presiding officer; and members of 
the House of Lords who have held, or do hold, high judicial 
office may also participate in appeal proceedings. This category 
includes, amongst others, ex-Lord Chancellors who may be re- 
quested by the Lord Chancellor to sit. The Lords of Appeal 
are required by law to perform their appellate functions; mem- 
bers other than the Lords of Appeal sit voluntarily. A conven- 
tion, based on the fact that ex-Lord Chancellors receive each 
an annual pension of 5,000, suggests that they should sit when 
requested. 

Corresponding to the fact that three form a quorum in the 
House of Lords is a provision that requires appeals to be heard 
by at least three judges including the Lord Chancellor. In 
practice, a division of three or five usually performs the judicial 
function of the House of Lords. 

Acts of Parliament in the nineteenth century, in addition to 
placing on a firm basis the appeal jurisdiction of the House 
of Lords, introduced a high degree of unification into the whole 
system of central courts. They accomplished this by the crea- 
tion of a single court, the Supreme Court of Judicature, which, 
in turn, consists of two courts, the Court of Appeal and the High 
Court of Justice. These latter courts, being part of a single 
court, are naturally closely related; yet they stand not on the 
same plane, but one above the other. The Court of Appeal is 



234 THE CENTRAL GOVERNMENT 

superior to the High Court j but its composition is, for the most 
part, comprehensible only in terms of the composition of the 
High Court of Justice. 

The High Court of Justice is at present composed of three 
Divisions. When the Court was established -by the Judicature 
Act of 1873, the three ancient Common Law Courts were 
erected into a Queen's Bench Division, a Common Pleas Divi- 
sion, and an Exchequer Division; but these three Divisions were 
fused into one, the Queen's Bench' Division, by an Order in 
Council of 1 88 r. The existing Divisions, in addition to the 
King's Bench Division, are known as the Chancery Division and 
the Division of Probate, Divorce, and Admiralty. 

The King's Bench Division of the High Court of Justice con- 
sists of the Lord Chief Justice and fifteeif other judges, known 
as puisne judges. The annual salary of the Lord Chief Justice 
is 8,000, that of a puisne judge 5,000. Various other court 
officials perform duties of considerable importance. Juries are 
frequently employed in this Division. 

The Chancery Division is the descendant of the ancient Court 
of Chanfery. The Lord Higlx. Chancellor is at its head, though 
he rarely serves here in practice. There are six judges of this 
Division, of whom the senior is for practical purposes the pre- 
siding judge. The annual salary of the Lord Chancellor is 
10,000. The other judges receive 5,000 per year. No juries 
are employed in this Division; but the judges are assisted by 
masters and clerks. 

The Probate, Divorce, and Admiralty Division of the High 
Court represents, as its name implies, a three-fold fusion. The 
Division incorporates, in the first place, the Court of Admiralty, 
the ancient origin of which appears to have dated from an 
uncertain year in the fourteenth century. The fusion effected 
by the Judicature Act of 1873 a ^ so included in this Division a 
Court of Probate and a Court for Divorce and Matrimonial 
Cases. These two Courts had been set up in 1857, >m order 
to discharge business that had before that time been handled 
by the Church Courts. Their inclusion in 1873 w ^h the Court 
of Admiralty was a matter of expediency, since there was logi- 
cally little in common between them. The Division of Pro- 



THE ADMINISTRATION OF JUSTICE 235 

bate, Divorce, and Admiralty now consists of a President and 
of two puisne judges. All receive the same annual salary as 
the judges of the other Divisions, that is, 5,000. 

The Court of Appeal is composed of judges of several kinds. 
In the first place, the Lord Chief Justice, the Lord Chancellor, 
and the President of the Probate, Divorce, and Admiralty 
Division of the High Court are members. The Lords of 
Appeal in Ordinary and ex-Lord Chancellors are also members. 
Finally, and much more important for practical purposes, the 
Master of the Rolls, who is an agent of considerable antiquity, 
and five Lords Justices of Appeals, who receive annual salaries 
of 5,000, regularly perform the duties of the Court. The 
Lord Chancellor is President of the Court of Appeals, but he 
very rarely sits. The Master of the Rolls, who receives a salary 
of 6,000 a year, is, for practical purposes, the ranking judge. 

The Judges of the Supreme Court of Judicature are in theory 
appohited by the King. This means, as in other cases, that the 
actual decision is that of a responsible Minister. In general, 
the ordinary judges of the High Court of Justice represent 
selections of the Lord Chancellor; whereas appointment of the 
Lord Chancellor himself, of the two other titled judges, of 
the President of Probate, Divorce, and Admiralty, and of the 
five Lords Justices of Appeals is made by the Prime Minister, 
who is likely, in the case of the others, to ask the advice of the 
Lord Chancellor. 

The legal rule of eligibility is that judges of the High Court 
of Justice must have been barristers for at least ten years, and 
that judges of the Court of Appeal must have been barristers 
for at least fifteen years or have served on the High Court for 
as much as one year. In practice, the general rule, subject to 
only a few exceptions, is that all judges are chosen from amongst 
members of the Bar. For practical purposes, this is always 
true of the ordinary judges of the High Court. There has 
apparently never been but one case of a judge promoted from 
a lower court. The President of Probate, Divorce, and Ad- 
miralty and the Lords Justices of Appeals are, in a majority of 
instances, taken from the, High Court. This may be regarded 
as a promotion, though no increase in salary is involved. Not 



236 THE CENTRAL GOVERNMENT 

mfrequently, however, one or more of these six judges may 
be appointed directly from the Bar. In the case of the three 
titled judges, the choice of the Prime Minister usually goes to 
the highest ranking barristers in the majority Party. In fact, 
by what may be considered a convention, the first offer, in case 
of vacancy, must go to the Law Officers of the Ministry, present 
or past. On rare occasions, a Lord Chancellor is taken from 
the bench of the Supreme Court, and, more frequently, the 
Master of the Rolls. . 

With the exception of the Lord Chancellor, who, of course, 
goes out of office -with the Cabinet, the English judges are 
appointed during good behaviour, that is to say, for life. Life 
tenure was finally established by the Act of Settlement of 1701, 
which stipulated "That . . . judges' commissions be made quam 
diu se bene gesserint, and their salaries ascertained and estab- 
lished, but upon the address of both houses of parliament it may 
be lawful to remove them." Closely similar provisions -were 
incorporated into the Judicature Act of 1873. The rarely em- 
ployed procedure involved in an address of the Houses of Par- 
liament takes on a judicial character. 

The high degree of unification of the English central courts 
of law is manifest in the conception of a court as a kind of 
reservoir of judges. Thus/ for example, the Supreme Court 
of Judicature is, for most practical purposes, merely a name 
that serves conveniently to designate collectively all the judges 
of the Court of Appeal and of the High Court of Justice. 
In the usual sense of the word, it never sits as a court. By 
provision of the Judicature Act of 1873, however, it forms a 
Judicial Council, instructed to meet at least once a year under 
the presidency of the Lord Chancellor, to direct its attention 
to rules of procedure and to the working of the various divisions 
and offices of the courts, and to make recommendations to the 
Home Secretary of desirable alterations in the law. It has 
apparently met only twice in about sixty years. So also, the 
Court of Appeal and the High Court of Justice are in their 
respective collective capacities only names. In neither case does 
the full membership sit at one time. The Court of Appeal 
sits in sections j and it is, thus, Ipr practical purposes, two 



THE ADMINISTRATION OF JUSTICE Iff 

courts. Judges of the High Court of Justice sit in several 
combinations j but the simplest arrangement, the sitting of one 
judge alone, is as truly as any other a sitting of the High Court. 
All these aspects of judicial unification manifestly make for sim- 
plicity and flexibility, with a consequent effectiveness and dis- 
patch in carrying to its completion all judicial work. More 
especially, a general separation of civil and criminal business is 
rendered easily possible. 

Civil controversies may be successively heard in one, two, or 
all of the superior or central courts, the High Court, the 
Court of Appall, and the House of Lords. Moreover, a cer- 
tain number of such controversies may be handled on a lower 
plane in the inferior or local courts. This involves the lesser 
civil courts known as County Courts. They were established 
in 1846. 

England and Wales are divided, for County Court purposes, 
into some five hundred districts. These districts, in turn, are 
grouped into fifty-five "circuits." In general, one judge is 
connected with each circuit. Some of the circuits scarcely de- 
serve .the name; for all the business involved is transacted 
under the same roof. In other cases, however, the judge pro- 
ceeds to several centres in an area composing a circuit. In 
principle, he holds court in every district of a circuit in every 
month of the year except September. In practice, he sits more 
frequently in some, less frequently in others. In certain specific 
conditions, employment of a small civil jury is possible ; but 
only in relatively rare instances is advantage taken of the op- 
portunity. 

The judges of the County Court are appointed by "the Lord 
Chancellor. They are likewise removable by him; but, in 
practice, they enjoy life tenure. In order to be eligible, they 
must have been barristers for at least seven years. They receive 
an annual salary of ,1,500, a figure that is said to be sufficient 
to attract barristers who may in their annual practice be earning 
from twice to thrice the amount of the salary. This number 
includes all the more successful barristers in the land, except a 
very few at the top. A barrister apparently accepts a county 
judgeship knowing that revenue from his practice is not likely 



238. THE CENTRAL GOVERNMENT 

further to increase, that his work as judge will be less of a strain 
on his nervous energy, that he is in some degree enhancing his 
social prestige, and that he will be completely secure in a guar- 
anteed career. Little thought of promotion can weigh with 
him, for only one county judge appears ever to have been 
selected for membership in the High Court of Justice. In the 
result, the county judges seem to give definite satisfaction. 

The County Courts were originally established with a view to 
rendering justice in small civil cases easy, prompt, efficient, and, 
above all, cheap. General satisfaction with the results is indi- 
cated by the fact that the jurisdiction of the County Courts has 
bfeen gradually extended by large numbers of Acts of Parlia- 
ment. At present, this jurisdiction involves many differences 
of detail 5 but, in general, the County Courts hear almost every 
variety of civil controversy, the determining factor, in a ma- 
jority of instances, being whether the controversy is such as to 
involve an amount of money falling under certain limits. In 
a few cases, such for example as divorce, the County Court is 
without jurisdiction. In a certain number of others, involving 
claims under certain Acts of Parliament, such as the Workmen's 
Compensation Act, the Agricultural Holdings Act, and others, 
County Court jurisdiction is exclusive. In all other cases, the 
County Courts possess concurrent jurisdiction with the High 
Court of Justice up to an amount that varies in detail. In gen- 
eral, the limit in suits at Common Law is 100 and in Equity 
cases 500. In Probate, the limits fall between these amounts j 
in Admiralty, they are in most instances somewhat higher , and 
in Bankruptcy no limit exists. 

Apparently, the County Courts are, for the most part, ful- 
filling their intended purpose. The number of cases of which 
they dispose in the course of a year will run to something like 
one or two hundred thousand more than a million. More than 
a million normally will involve a sum less than 20. More- 
over, at least 99 per cent of the whole number of cases begun 
in the County Courts are either settled informally by the judge 
or else stricken from the record. Again, of the cases that are 
formally tried, nearly 99 per cent are heard without a jury. 

Appeal may be, and in some cases is, taken from decisions 



THE ADMINISTRATION OF JUSTICE 239 

of the County Courts that involve more than 20. It may be 
taken only on points of law and then only with the judge's 
consent. The appeal is, as a general rule, to the High Court 
of Justice; but, in certain cases in which the County Courts have 
exclusive jurisdiction, appeal lies directly to the Court of Ap- 
peal. Naturally, no appeal is possible in cases informally set- 
tled. Of formal decisions handed down, only about one per 
cent will normally be appealed. Between fifteen and twenty 
per cent of the decisions appealed may be expected to be re- 
versed. This means a very small fraction of one per cent of 
the total formal County Court decisions. 

In general, civil cases that are not begun in the County Courts 
are heard originally in the High Court of Justice. These cases 
include a small number in respect of which the County Court 
has no jurisdiction and a larger number falling within the con- 
current jurisdiction of the County Court and the' High Court. 
In the second respect, a case is heard in the High Court if it 
involves an amount surpassing the limit set for the County 
Court in the specific instance; and a case may by choice be sub- 
mitted to the High Court, even if the amount involved does 
not exceed the limit fixed. 

The majority of civil cases begun in the High Court of Jus- 
tice are heard by one judge. If the hearing is technically before 
the Judge, it is before what is known as a Judge in Chambers. 
The Judge sitting in Chambers dispatches a large amount of , 
work. He deals with matters lending themselves to handling 
in conditions freed from the formalities of open court. At such 
times, the Judge possesses the saAe jurisdiction as in open court, 
except where he is limited by legal restriction. 

In the case of single judges sitting formally, each constitutes 
the High Court. In this way as- well, large amounts of business 
can be handled. Civil cases formally tried may be heard before 
a common or special jury. Such jury trial is a matter of right 
in Common Law actions; and, in others, it may be employed at 
the discretion of the judge. In practice, about one civil trial in 
three is a jury trial. 

A single judge of the High Court, whether he sits as a Judge 
in Chambers or constitutes the High Court, administers justice 



24O THE CENTRAL GOVERNMENT 

both in London and in outlying areas of the country. In the 
second respect, he is a direct descendant of the ancient itinerant 
justices. When he holds formal court, the court is known as an 
Assize Court. It is, in essence, a local sitting of the High Court 
of Justice. England and Wales are at present divided into 
eight Assize circuits. In each of these, there are certain Assize 
towns, in which Assize Courts are held from two to four times 
a year, depending on the amount offending judicial business. 
In a technical sense, the High Court of Justice has one juris- 
diction; and, except where the law requires two or more judges 
to sit, any judge, in constituting the High Court, possesses the 
jurisdiction of the entire Court. At the same time, the existence 
of the three Divisions of the Court has some important prac- 
tical results. Certain matters are assigned to each of the Divi- 
sions. In general, these are the matters that used to fall within 
the jurisdiction of the courts from which the several Divisions 
are descended. Technically, each Division, it is true, has the 
jurisdiction of the whole Court. However, inasmuch as the 
Lord Chancellor may transfer the judges of one Division to 
either of the other Divisions, this is merely to repeat that each 
judge has the jurisdiction of the High Court. Thus, on the 
one hand, the intimate connection of the various judges with the 
Divisions to which they belong secures the virtues of special- 
ization ; whereas, on the other hand, the pronounced degree 
of unification ensures the greatest effective employment of exist- 
ing judicial resources. This general rule, that a case is heard 
in a specially competent court except at the cost of delay and 
inefficiency, has various appncations in practice and displays 
numerous manifest advantages. For example, once the hearing 
of a case has been begun in one Division of ther High Court, 
there can be no necessity for transferring it to another. Again, 
the choice of judges for the Assize Courts is made very flexible. 
In practice, a judge of the King's Bench Division is, in a ma- 
jority of instances, selected; for not only does the greater num- 
ber of these judges ordinarily make more of them available, 
but a majority of cases on Assize, as well as in London, fall 
within the specialized jurisdiction of a Division that has been 
allotted a large number, of judges for that reason. However, 



THE ADMINISTRATION OF JUSTICE 24! 

other Divisions also travel, if practicable, on circuit. Whatever 
the choice may be, the distinction between civil and, criminal 
courts is maintained here as elsewhere. Normally, two judges, 
one civil and one criminal, gb on circuit together. If no civil 
business is awaiting at an Assize town, the civil judge stays 
behind. Finally, the unification and flexibility of the High 
Court of Justice have rendered possible a certain fusion of 
Common Law and Equity. 

The definite establishment in the fifteenth century of the 
Chancellor's jurisdiction gave rise to the existence of two dis- 
tinct sets of rules by which justice was administered in distinct 
courts. This general situation continued to exist until the end 
of the nineteenth century. In the meanwhile, there were 
numerous ups and downs. Acts of Parliament struck blows at 
the development ^f Equity 5 and yet Equity succeeded from 
time to time in adding new fields to its jurisdiction. The 
Common Law Courts, especially in the seventeenth century, 
so much resented what they considered interference on the part 
of the Chancellor that the very existence of Equity was 
threatened. An open conflict broke out between the Chief Jus- 
tice, Sir Edward Coke, and the Chancellor, Lord Ellesmere. 
The settlement, made by James I (1603-1625), supported the 
Chancellor. Reform and even abolition of Equity were at 
times proposed during the Cromwellian period ( 1649-1660) j 
but nothing occurred in that or succeeding periods to disestab- 
lish Chancery or to prevent its growth. Finally, the Judicature 
Acts of 1873-1875, in consolidating the Court of Chancery and 
the Common Law Courts into the High Court of Justice, gave 
to one court all the powers of both kinds of courts. Hence, 
one court now administers the rules of Equity and the rules 
of Law, the Act of 1873 adding that, in case of "conflict or 
variance," the rules of Equity should prevail. Matters which 
primarily involve Equity are, of course, usually heard in the 
Chancery Division; but the rules both of Law and of Equity 
may be applied in any Division. In this way, only one pro- 
ceeding is required where, formerly, several were possibly 
necessary. Moreover, the procedures of Common Law and 
Equity have in several ways been assimilated j and the reme- 



THE CENTRAL GOVERNMENT 

dies of both may be sought in any Division. In general, the 
substance of the rules of Law and Equity has remained funda- 
mentally the same 5 but procedure has been greatly simplified. 

A certain amount of the civil business of the High Court of 
Justice is not only performed by one Judge, whether in Cham- 
bers or as the Court, but may also be heard by two or three 
judges usually two constituting what is known as a Divi- 
sional Court. The original trial of a case before a Divisional 
Court is the exception. However, the appellate jurisdiction of 
the High Court is regularly exercised by the Court in this 
form. More especially, appeals from the County Courts to the 
High Court ^re regularly heard by Divisional Courts of two 
judges. / 

Appeals in civil cases from the several Divisions of the High 
Court of Justice are normally taken to th Court of Appeal. 
They are heard before one or the other of its two sections, 
presided over in the one case by the Master of the Rolls and 
in the other by the senior Lord of Appeal. From the Court of: 
Appeal an appeal lies to the House of Lords. 

The general principles of the administration of civil justice 
by the local and central English courts are, in summary, rela- 
tively simple. In a few instances, a case may be heard origi- 
nally only in the County Court. In others, the original hear- 
ing must, either because of the nature of the case or because of 
the amount of money involved, be heard in the High Court 
of Justice. In still others, corresponding for the most part to 
the cases that must be heard in the Hij|h Court if the amount 
involved is considerable, the hearing may be heard either in 
the County Court or in the High Court. In cases that are heard 
in the County Courts, appeals are taken in a few instances 
directly to the Court of Appeal j in most others, they may 
be taken to a Divisional Court in most instances, the King's 
Bench Division of the High Court of Justice. Cases that are 
heard originally before the High Court are heard either on 
Assize or in London. Appeals from the High Court may b^ 
taken to the Court of Appeal and thence to the House of 
Lords. 



THE ADMINISTRATION OF JUSTICE 243 

The great majority of criminal cases in EnglanJi or Wales 
are heard in local or inferior courts. These courts are, for the 
most part, either Courts of Petty Sessions or Courts of Quarter 
Sessions. Other criminal cases are heard at Assizes, held by 
judges of the King's BAch Division of the High Court of 
Justice. In Condon, the Central Criminal Court serves as both 
Quarter Sessions and Assize for the London area. 

Courts of Petty Sessions and of Quarter Sessions are, in rural 
areas, to be thought of primarily as connected with the County 
and, in urban communities, witfy the Borough. In especially 
populous Boroughs, Courts of Petty Sessions are held continu- 
ously. They are presided over by paid judges, trained in the 
law, known as Stipendiary Magistrates, In corresponding con- 
ditions, Quarter Sessions are held by a Recorder. Of the Sti- 
pendiary Magistrates, twenty-seven are found in London and 
twenty, including two in Leeds and three in Manchester, in 
large towns. Recorders are, in spite of a certain amount of 
opinion that favours their extension, definitely exceptional. The 
typical judges of Petty and Quarter Sessions are Justices of 
the Peace. 

AIL Counties and certain Boroughs have what are known as 
commissions of the yeace. These are formal documents that 
show the names of the Justices of the Peace for the area con- 
cerned. Their form dates from the sixteenth century. Justices 
of the Peace themselves are considerably more ancient. The 
title was established in 13605 but the office, under the name of 
Keepers of the Peace, was known still earlier. Justices were 
in the beginning largely police officials. They are now pri- 
marily judicial officers. At one time, they performed important 
administrative or governmental functions in the Counties. A 
few administrative duties survive until the present time. 

Justices of tho Peace, or Magistrates, are appointed, on be- 
half of the Crown, by the Lord Chancellor. The Lord Chan- 
cellor is advised, in the case of the Counties, by the Lord Lieu- 
tenant and an advisory committee and, in the Boroughs, by a 
special advisory committee. Justices are appointed for lifej 
but they may for cause be removed. No property or educa- 
tional requirements exist. Justices of the Peace are normally 



244 THE CENTRAL GOVERNMENT 

lay men j- and* they receive no pay for their services. Women, 
as well as men, are eligible. In all, there are about 20,000 
Justices of the Peace. 

In connection with crimihal business, Justices of the Peace, 
in addition to constituting local counts, perform certain func- 
tions in their individual judicial capacity. More especially, they 
hold preliminary hearings with respect to indictable offences. 
Legally, one Magistrate is sufficient for this purpose j but the 
normal practice is foi^ more than one to act. A preliminary 
hearing is held for the purpose of determining whether suffi- 
cient evidence exists in a given case to warrant proceeding with 
a trial. If the determination is affirmative, the accused is 
ordered to be held for trial. The Magistrate determines 
whether the accused shall be held in prison or allowed bail. 
If the evidence is found insufficient, the accused, is dismissed. 

A Court of Petty Sessions, except where presided over by a 
Stipendiary Magistrate, is constituted by two or more Justices 
of the Peace. In the Counties, these Courts are held in Petty 
Sessions Districts, into which Counties are divided. The Courts 
are Courts of Summary Jurisdiction, that is to say, they do not 
employ a v jury or conduct trials according to all the formalities 
of Common Law procedure. Their primary jurisdiction in- 
cludes cases that are not indictable. 1 They may inflict punish- 
ment in the form of relatively short imprisonment or small 
fines. The conditions on which Courts of Summary Jurisdic- 
tion may try certain indictable offences are that the accused be 
asked to consent to waive jury trial and that he give his express 
consent before any evidence is taken. Confidence in Courts of 
Summary Jurisdiction is shown by the fact that 50,000 or more 
indictable offences are tried every year at Petty Sessions and 
that Parliament has been increasing the number of these offences 
in which such trials Ipy consent are possible. Altogether, Petty 
Sessions dispose of about three-quarters of a million ' cases 
annually. 

Criminal cases involving indictable offences, if they are not 
heard by a Court of Summary Jurisdiction, that is to say, if 
they cannot be so tried or if the accused chooses trial by jury, 

1 Indictment by grand jury was abolished in England in 1933. 



THE ADMINISTRATION OF JUSTICE 245 

are tried at Quarter Sessions or at Assizes. The Magistrates 
at the preliminary hearing play a part of considerable propor- 
tions in determining whether Quarter Sessions or Assize shall 
be used for trial. They are not, however, completely free in 
their choice. The criminal jurisdiction of Quarter Sessions, 
though there is a tendency to broaden it, is not so wide as that 
of Assizes. For example, murder, treason, and manslaughter 
must be sent to Assizes. Other considerations that weigh with 
the Magistrates at preliminary hearings are the question of cost, 
the question of what criminal court will first be held in the area 
involved, and the general question of the condition of the 
dockets. In practice, about five times as many criminal cases 
are tried by Quarter Sessions as by Assize. 

Quarter Sessions, as their name implies, meet four times a 
year. They are, in the case of the Counties, constituted by all 
the Justices of the Peace of the County. At least two of them 
must sit, one of them acting as Chairman. In all their criminal 
trials, they use a petty jury. Such a system is sometimes criti- 
cized because the Justices are usually laymen, untrained in the 
law. In fact, a lay Chairman may in some instances be called 
upon carefully to direct a jury in a manner of which only a 
trained lawyer is capable. This criticism does not apply to 
Borough Quarter Sessions held by a Recorder j and it is, in 
other instances, mitigated by the fact that the Justices are ad- 
vised by a Clerk, who is a lawyer of training and experience. 

Courts of Quarter Sessions possess appellate as well as 
original jurisdiction. To them an appeal lies from Petty Ses- 
sions. In such instances, there is, in reality, a rehearing. These 
appeals are infrequent. The reasons for this that are commonly 
suggested include the matter of excessive expense and the 
matter of confidence in Summary Jurisdiction; but since either 
explanation would account for the facts, the weight of each 
remains uncertain. 

When criminal cases are heard at Assize by judges of the 
King's Bench Division travelling on circuit, the judges derive 
their authority from what are known as Commissions. The 
Commissions involved in criminal cases are the Commission of 
Oyer and Terminer, which authorizes trial of persons who have 



THE CENTRAL GOVERNMENT 

been indicted, and the Commission of Gaol Delivery, which 
empowers a judge to try all prisoners- in confinement or on 
bail. Commissions are sometimes issued to persons who are not 
judges of the High Court/ 

Previous to 1907, no right of appeal in criminal cases existed. 
The unsatisfactory character of this situation led to the estab- 
lishment in that year of the Court of Criminal Appeal. It 
consists of the Lord Chief Justice and the judges of the King's 
Bench Division. A statutory provision requires that at least 
three judges shall sit; and, in practice, this number usually 
constitutes the Court. To it lie appeals from Quarter Sessions 
and Assizes. From the Court of Criminal Appeal, appeal lies 
to the House of Lords on a point of law of especial importance. 

The administration of criminal justice in England, then, is, 
in outline, simple. If an offence of a non-indictable character 
is committed, it is tried at Petty Sessions. Where the offence 
is indictable, a preliminary hearing is held. Unless the case 
is dismissed, it will be tried either by consent in Petty Sessions 
or, otherwise, at Quarter Sessions or Assizes with a jury after 
indictment. If the offence is very grave or if it involves great 
difficulty, it must be heard at Assize. If, incidentally, death 
is involved, the preliminaries include a Coroner's Inquest. 
From Petty Sessions appeals lie to Quarter Sessions, and from 
Quarter Sessions and Assizes to the Court of Criminal Appeal, 
possibly to the House of Lords. 



2. ADMINISTRATIVE JUSTICE 

The fact that, historically, adjudication and law courts grew 
naturally out of activities and organs which we should today call 
administrative is matched by an important and interesting con- 
temporary development. This is the well known growth of 
what are known as administrative law and administrative courts? 

In the period following the Norman Conquest, the Kings 
who were interested in the establishment of a strong consoli- 
dated government }n England naturally found themselves with 
much to do. This important work of consolidation was primar 

1 Cf. Ch. X, p. 14.8, sutra. 



THE ADMINISTRATION OF JUSTICE 247 

rily of a character that is known these days as administrative; 
and the King and the agents he employed were primarily ad- 
ministrators. However, historical evidence and the reason com- 
bine to suggest that important pieces of administrative business 
inevitably involve uncertainties and controversies, that, in other 
words, serious problems of administration include within them- 
selves, so to say, questions of adjudication. This was the simple 
basis for the employment, during the period after the Norman 
Conquest, of agents and organs that were at the same time 
administrative and judicial. It is, likewise, the explanation of 
the fact that consolidation of the kingdom and gradual evolution 
of the Common Law and the Common Law Courts took place 
together. Only much later, in the struggle for supremacy be- 
tween King and Parliament, did the idea become well founded 
that the Courts are protectors of individual rights. It was in 
the same connection that the famous Rule of Law became 
established. 

The late Professor Dicey, whose name is naturally men- 
tioned whenever the Rule of Law is referred to, stated the 
Rule of Law in one of its important, if negative, aspects as 
follows: "No man is above the law, but . . . every man, what- 
ever be his rank or condition, is subject to the ordinary law of 
the realm and amenable to the jurisdiction of the ordinary 
tribunals." 1 This concept has in recent years been the subject 
of considerable criticism. 

The fact that an independent judiciary in England was not 
in the beginning established immediately by differentiation is 
not merely to be explained by the slowness of the working of 
evolution. The slowness of the working of evolution in this 
respect is to be explained by a simple consideration, which is 
supported by both experience and anaylsis. When there is 
much important business to be done, efficiency requires that ad- 
ministration and adjudication shall be in considerable degree 
lodged in the same hands. A separate judiciary is likely greatly 
to retard, possibly to prevent, and certainly to render less effec- 
tive all accomplishment of pressing business. 

Across the Channel from England, in France, consolidation 

1 Of. cit., p. 189.- 



248 THE CENTRAL GOVERNMENT 

of the state took place later, of course, than in England. For 
this reason and others, attempts on the part of the French 
administration to cope with the problem of accomplishing press- 
ing and far-reaching business may be viewed in more modern 
conditions. More especially, after the French Revolution, 
enormous administrative tasks had to be accomplished. At this 
date, of course, judicial tribunals had long since become well 
known phenomena. In these conditions, the possibility of judi- 
cal interference with administrative accomplishment was, it is 
interesting to note, anticipated. The courts were expressly for- 
bidden by law to concern themselves with administration. As 
a result, in France, as compared with England, a different, 
though fundamentally analogous, development took place. Ad- 
ministrative agents and organs grappled with their tasks; and 
they themselves decided the judicial questions inherent in the 
accomplishment of their tasks. The accepted principle was that 
regard for individual rights could not be carried to the point 
of seriously interfering with the work to be done. As time 
passed, specialization caused a distinction to be made between 
active administration and judicial administration. In due course, 
this led to differentiation; and, in this second respect, tribunals 
were established. However, the important and interesting point 
is that the tribunals were administrative tribunals. This fact 
has caused an assumption to be made by some people, un- 
acquainted with existing conditions, that such a system must be 
detrimental to individual rights. As a matter of fact, it is safe 
to assert that in modern France the rights of individuals are 
as secure with the administrative tribunals as they could well be 
anywhere and that the cause of administrative efficiency is the 
more secure because of these tribunals. 

In England and, incidentally, in the United States the last 
few decades have witnessed certain developments that throw 
some doubt, to say the least, on the applicability and even the 
desirability of certain aspects of the Rule of Law. The whole 
matter is inextricably interconnected with modern industrial, 
commercial, and social problems and with the consequent social- 
ization of government. It is bound up, in other words, with 
what has been called the change by which the modern state has 



THE ADMINISTRATION OF JUSTICE 249 

become a positive state instead, of a negative state. Public 
authority, as is well known, is putting relatively less emphasis 
on protecting individuals and relatively more emphasis on doing 
things for them. In this general situation and, more especially, 
in the crises that it has involved, the administration has been 
looked to in such a way that its sphere of activity has been 
considerably widened. The English Parliament has tended to 
act along two lines especially. In the first place, Parliament 
has delegated, as is well known, certain broad rule-making 
authority to the administration. In the second place, Parliament 
has conferred upon the administration the authority in certain 
instances to adjudicate controversies. 

Acts of Parliament, such as Acts dealing with Factory Trade 
Boards, with Public Health, or with Town Planning, are ex- 
amples of the kind of enactment that bestows judicial power 
upon administrative agencies. In some instances, decisions of 
such agencies are final, no appeal lying to the regular courts. 
Such decisions may involve important individual rights. This 
striking development has tended to escape the attention of all 
but a few acute observers, partly because the situation has been 
gradually evolved and partly because Dicey's views concerning 
the Rule of Law have been so implicitly believed. There has 
been a tendency to regard the Common Law as possessing a 
peculiar character that precludes the existence of Administrative 
Law. The latter has been usually looked upon as a Continental 
and, more especially, a French phenomenon. It has been fre- 
quently misunderstood and undeservedly despised in England. 
Hence, when the, growth of Administrative Law in England 
has been forced upon the reluctant attention of certain legal 
students, the result has been opposition and warning of danger. 
For example, in 1929, Lord Hewart, the Lord Chief Justice, 
published a little book with the title The New Despotism, 
which reflected the attitude of a considerable body of alarmed 
jurists. He called to the attention of the public the dangers 
that he conceived to be attendant on the existing line of de- 
velopment. In the same year, a Committee on Ministers' 
Powers wa$ appointed by the Lord Chancellor. Its Report of 



25O THE CENTRAL GOVERNMENT 

1932 * suggests that the studies of the Committee did not alto- 
gether bear out the contentions of Lord Hewart. Indeed, far- 
sighted opinion appears with some plausibility to hold that the 
development of administrative justice is not only inevitable 'but 
also, with proper modifications and safeguards, desirable. The 
whole question deserves careful study and will, with the pass- 
ing of time, certainly demand increasing attention from students 
of the science of government. 

1 Cmd. 4060. Cf. especially Section III. 



PART V 
ENGLISH LOCAL GOVERNMENT 



CHAPTER XVI 
LOCAL COMMUNITIES AND THEIR AGENCIES 

The study of local government presents many points of 
analogy with the study of government as a whole. Indeed, 
the study of local government may, with some reservations, be 
thought of as the study of national government in miniature. 
In this way, the study possesses the manifest advantage of ren- 
dering more easily possible a perspective that envisages the 
whole. ' The view has long been held that a principal reason 
for the high pitch to which political theory was carried by the 
ancient Greeks is the fact that the state for the Greeks assumed, 
in general, the proportions of a modern municipality. Modern 
municipalities, it is true, do not generally possess the high de- 
gree of autonomy and independence that characterized the an- 
cient Greek city-state; but, at the same time, the study of modern 
localities possesses, by analogy, many of the same advantages 
of perspective. 

Local government, as its name implies, definitely involves 
certain localities or areas. In this way, territory ? with its popu- 
lation, is a physical basis of local government, as it is of govern- 
ment in general. In turn, the several areas of local govern- 
ment possess governments, whether in the sense of structure or 
function; that is to say, they possess legal organizations exer- 
cising authority of a legal nature. In all these respects, local 
government is analogous to the government of sovereign and 
independent states. That which prevents technically the anal- 
ogy from being an identity is precisely the characteristic of 
sovereignty and independence. 

If the study of local government is of great importance in 
general, the study of English Local Government is particularly 
important. The marked genius of the British for self-govern- 
ment has brought them a high degree of success in solving the 

253 



254 ENGLISH LOCAL GOVERNMENT 

problems of local government, as in solving those of other 
kinds of government. Indeed, local government in England is 
frequently said to be a training school for self-government. 
However that may be, many aspects of English Local Govern- 
ment have been admired and envied in other countries 5 and the 
effects of a considerable influence may be observed in various 
parts of the world. 

I. AREAS 

Every person residing in England is subject to the authority 
of one or more local governments, as well as to that of the 
general government. When he is within the confines of Eng- 
land, he is at the same time in one or more other areas em- 
ployed for governmental purposes. The simple reason for this 
is that every square yard of the territory of England is included 
in at least one area of local government. 

The fact that considerably more than half the population 
of England resides in urban communities gives to the study of 
urban l<x:al government a certain claim to priority. 1 So far 
as area is concerned, the typical urban community is, of course, 
the city, or, as it is more frequently called in England, the 
Borough. However, only a certain kind of Borough, namely 
the County Borough, is a primary territorial subdivision of 
England. The term County Borough indicates that an urban 
community of this sort possesses the characteristics of, is on the 
same plane with, the County, which is the largest territorial sub- 
division of the country. Thus, the basic local governmental 
division of England involves two areas of an equal status. The 
County Borough is an urban community, the County an area 
partly rural and partly urban. A County Borough is generally 
contained geographically within a County 5 that is to say, as an 
area it is completely surrounded by another area; but, for pur- 
poses of government, the County Borough is no part of the 
County in which it is situated. 

County Boroughs, like other urban communities, owe their 
remote origin to the several kinds of forces, particularly those 

a Cf. Ch. II, p. 12, supra. 



LOCAL COMMUNITIES AND THEIR, AGENCIES 2$$ 

0f an economic character, that have caused people to settle and 
to live in the congested conditions known as urban. These con- 
ditions have been familiar since the beginning of recorded his- 
tory. When communities characterized by such conditions ac- 
quired in the course of time what came to be regarded as a 
personality of their own, they became Municipal Corporations. 
County Boroughs belong to that class. 

Though certain English Boroughs possessed from early times 
a status similar, in its independent character, to that of present- 
day County Boroughs, County Boroughs as such owe their 
origin to an Act of Parliament of 1888. About sixty Boroughs 
of the kind were set up at that time. All Boroughs of 50,000 
population or more and three or four exceptional communities 
of a smaller size were given by the Act a status independent of 
the Counties in which they were located. Another twenty or 
so have been added since that time. At present, an Act dating 
from 1926 stipulates that Boroughs of 75,000 or more inhabi- 
tants may apply for the status of County Borough j and if they 
meet certain requirements in addition to that of population, they 
may usually expect success. 

The County that is involved in English Local Government 
is what is known as the Administrative County. These are, in 
a majority of cases, the same as the "Historic" Counties. His- 
toric Counties, in turn, are for the most part the same as the 
Anglo-Saxon Shires, by which name, indeed, the Historic Coun- 
ties are, as has been noted, still frequently called at the present 
day. There are fifty-two Historic Counties. They serve cer- 
tain military and parliamentary purposes. 

More especially connected with local government are sixty- 
two Administrative Counties. Their number in excess of the 
number x)f Historic Counties is to be attributed to the fact that, 
for purposes of local government, a few Historic Counties have 
been divided so as to form either three or two Administrative 
Counties. As a matter of fact, all the Administrative Counties 
were established by the same Act of 1888 that originally set up 
the County Boroughs. 

About half of the Administrative Counties have areas of 
more than 500,000 acres j and of these seven have an area of 



ENGLISH LOCAL GOVERNMENT 

more than 1,000,000 acres. At the other end, three Countie^ 
contain less than ioo,OOO acres each. Five Administrative 
Counties possess populations of more than 1,000,000. One 
County has a population of less than 20,000. About half of 
them have populations of less than 250,000. 

Though the County Borough and the County are to be re- 
garded as on the same plane as each other and as the primary 
divisions of England for purposes of local government, only 
one of them, namely the County, contains the lesser areas in- 
volved in local government. The County Borough contains 
within its borders none of these communities; and yet this is not 
to say that local government is not concerned with urban lo- 
calities which stand on a lower plane than the County Borough. 
On the contrary, two other local government areas of an urban 
character exist. Nevertheless, they are sub-divisions of the 
County, not only in the geographical but also in the govern- 
mental sense. The first of these areas is the Non-County Bor- 
ough, or, as it is frequently called, the Municipal Borough. 

There are at present about 260 Municipal Boroughs. The 
great majority of them have a population of less than 75,0005 
but a few possess a larger size than that required of new County 
Boroughs. Municipal Boroughs are, like County Boroughs, 
municipal corporations. In fact, they may, in respect of the 
structure and functions of their governments, be associated for 
the most part with County Boroughs. The principal mark of 
distinction, it may be repeated, is the fact that, in respect of 
powers, Municipal Boroughs are somewhat dependent on, Coun- 
ty Boroughs wholly independent of, the County. 

The second kin4 of urban community that is both a geo- 
graphical and governmental subdivision of the County bears the 
undistinguished name of "Urban District." As areas, Urban 
Districts possess the characteristics commonly associated with 
boroughs, cities, or towns. They are, however, unincorporated. 
They were originally established in 1872 as sanitary Districts. 
Of them, there ard at present about 780. Four have popula- 
tions of between 100,000 and 250,000. About fifteen possess 
populations of less than 1,000. Nearly three hundred have 
populations under 5,000. At least one County contains no 



LOCAL COMMUNITIES AND THEIR AGENCIES 257 

Urban District j and one County contains more than one hun- 
dred of them. A new Urban District may, in accordance with 
law, be created by the County. 

The principal rural subdivision of the County is the Rural 
District. Urban and Rural Districts together, and sometimes 
even Municipal Boroughs, are called "County Districts." 
Rural Districts number about 640. More than forty of them 
are areas of between 100,000 and 250,000 acres. One is an area 
of less than 1,000 acres. Roughly speaking, two hundred and 
fifty Rural Districts consist of between 50,000 and 100,000 
acres each, and the same number of between 20,000 and 50,000 
acres each. Six possess populations between 50,000 and lOOjOOO. 
Two have less than 1,000 inhabitants each. A majority have 
populations under 10,000. A few Counties contain only two 
or three Rural Districts. The largest number in one County is 
about thirty. 

The rural community lowest in the scale of local govern- 
ment areas, and normally the smallest, is the Rural Parish. 
Urban Parishes also exist, but they are of no importance in 
connection with local government. The number of Rural Par- 
ishes is approximately 13,000. 

County Boroughs, Counties, Municipal Boroughs, Urban and 
Rural Districts, and Rural Parishes constitute what may be 
considered the basic local government areas of England. For 
particular purposes, various combinations of these basic areas 
are, of course, possible j and numerous combinations are, in 
practice, employed. There are also a few areas of recent origin 
that have been formed without regard for the basic areas. 

In any classification of English areas of local government, 
the great metropolis of London will be in large measure ex- 
ceptional. In the first place, there is a County of London. 
Its extent is something more than 115 square miles. Its popu- 
lation is about four and one-half millions. Unlike the typical 
Administrative County, the County of London is completely 
urban in character. Even so, it does not contain by any means 
all of the great continuous urban community that is in the 
general sense London. The present boundaries of the County 
of London were established in 18885 but, naturally, no arbi- 



ENGLISH LOCAL GOVERNMENT 

trary determination of limits can prevent an urban community 
from expanding. As it is, the County of London extends over 
large parts of four Historic Counties. 

The County of London is, for purposes of local government, 
made up of twenty-nine parts. One of these is the City of 
London. This is London in the most restricted sense, being a 
small central kernel frequently associated with the activities of 
high finance. Its extent is only about a square mile; and its 
"night population" consists of a few thousands. The other 
twenty-eight parts of the County are what are known as Metro- 
politan Boroughs. Each of these is in itself a well-defined Bor- 
ough, though separated from the other Metropolitan Boroughs 
or, in the case of the Boroughs forming the edge of the County, 
from adjacent territory by no rural areas. 

There are several other "Londons," each being defined as 
an area within which some special administrative service is 
performed. Perhaps the best example is the Metropolitan 
Police District. This is an area containing the County of Lon- 
don and a considerable amount of outlying territory. Its ex- 
tent i nearly 700 square miles. It is roughly equivalent to 
"Greater London," an area having no legal or administrative 
existence, but an urban community conceived of as embracing a 
great agglomeration extending about fifteen miles in all direc- 
tions from Charing Cross. 

2. AGENTS AND ORGANS 

Analogy drawn between local government, on the one hand, 
and national government, on the other, would appear to sug- 
gest that the governmental, agents and organs of the first are 
to be classified, like those of the second, into the three familiar 
branches. However, local courts may with some reason be 
considered an integral part of the national judiciary. 1 They 
are, in reality, local principally in the sense that they are asso- 
ciated with small communities in order to bring justice close 
to the people. This reduces the branches of local government 
to two. They are, of course, the legislative and the executive. 

1 V.. Ch. XV. sutra. 



LOCAL COMMUNITIES AND THEIR AGENCIES 259 



(a) Local Legislatures 

The characteristic agency of self-government in English com- 
munities is the Council. All basic urban communities possess 
Councils as their central organ of government j and the same is 
true of Counties, of Rural Pistricts, and of about half of the 
Parishes. Parishes, in general, possess, in a Meeting of all 
qualified citizens, an institution of pure, direct, non-representa- 
tive democracy. These primary assemblies are descendants of 
Town Courts, that is to say, meetings that existed in Anglo- 
Saxon times. Parishes with a population exceeding 300 have, 
in addition to Parish Meetings, Parish Councils as well. Even 
if a Parish has less than 300 inhabitants, it may have a Council. 
If it has as many as 2OO, it may decide for itself; if it has less, 
it must ask permission of the County. In the result, about 
7,100 Parishes have both Meetings and Councils; about 5,600 
have only Meetings. - 

Local Councils and Meetings are deliberative bodies. They 
may be regarded as miniature legislatures. So far as Councils 
are concerned, they are, in accordance with the application of 
democratic principle in conditions where direct democracy is 
hardly practicable, representative assemblies. Councils, there- 
fore, in common with other deliberative, legislative, representa- 
tive bodies, present problems of composition and organization. 

Corresponding to the fact that County Boroughs and Coun- 
ties are the principal areas of local government is the fact that 
County Borough Councils and County Councils, including that 
of the County of London and those of the Metropolitan Bor- 
oughs, 1 may be conveniently classed together. Moreover, Mu- 
nicipal Borough Councils are in most respects similar to County 
Borough Councils. Hence, Borough Councils and County 
Councils, which are together to be differentiated from the 
Councils of lesser areas, may be thought of respectively as the 

1 Thc City of London, sometimes called an "unreformed Borough", 
retains its historic organs of government. They are the Court of Alder- 
men (the only municipal second chamber in England), xhe Court of 
Common Council, and the Court of Common Hall. 



2.6O ENGLISH LOCAL GOVERNMENT 

principal governing agencies of the principal urban and the 
principal rural localities. 

Borough and County Councils are unicameral in structure.. 
In other words, all the members that compose a Council sit in 
a single body. This is true in spite of the fact that American 
analogy fnight suggest a bicameral structure j for Borough and 
County Councils are composed of two elements, Councillors 
and Aldermen. Indeed, a third element should, perhaps, be 
added in the form of the presiding officer. In a Borough, the 
Council is presided over by the Mayor of the Borough, who 
probably presents more points of difference from than of resem- 
blance to the official of the same name in Mayor-Council cities 
in America. The presiding officer in a County Council is called 
the Chairman. In all cases, Councillors, Aldermen, and pre- 
siding officer, taken together, make up the unicameral Council. 

Councils of lesser .areas, that is to say, Urban and Rural Dis- 
trict Councils and Parish Councils are to be differentiated by 
the fact that there are no Aldermen in theft* composition. Their 
presiding officers are known as Chairmen. 

The* size of local English Councils varies in a general way 
with the size of the localities involved. Borough Councils 
range from 9 to 151. Their size is determined by their Charter. 
There are usually three Councillors for each Ward into which 
the Borough is divided. The size of County Councils varies in 
a similar way as determined by Act of Parliament. The size 
of Urban and Rural District Councils and of Parish Councils is 
determined by the Council of the County in which they are sit- 
uated. In the case of the District Councils, the power of the 
County Council is, in this respect, unlimited. In the case of the 
Parish Councils, on the other hand, the County Council may 
not decide on a number less than five or greater than fifteen. 

In such local Councils as coritain Aldermen, that is to say, 
in Borough Councils and County Councils, the number of Al- 
dermen bears a fixed ratio, one to three, to the number of 
Councillors. Aldermen may be, and frequently in practice are, 
chosen not only from outside the Council but also from amongst 
the Councillors. However, if a Councillor becomes an Alder- 
man, the resulting vacancv is regular lv filled; and, as a conse- 



LOCAL COMMUNITIES AND THEIR AGENCIES 26l 

quence, the size of the Council is not affected. On the other 
hand, a given Borough Council may vary in size by one, de- 
pending on whether the Mayor is chosen from inside or outside 
the Council. In the first instance, the Mayor retains his capacity 
as Councillor or Alderman, as the case may be; and the size of 
the Council remains the sum of Councillors and Aldermen. If, 
however, the Mayor chosen is not a Councillor or Alderman, he 
becomes a member of the Council; and the size of the Council 
is thus increased by one. The Chairman of County, Urban and 
Rural District, and Parish Councils may likewise be chosen from 
the membership of the Councils or from outside; so that the 
size of the Councils may vary in the same way as Borough 
Councils. 

The term of Urban and Rural District Councils and of Par- 
ish Councils is three years. In the case of Borough Councils 
and County Councils, distinction must be made between Coun- 
cillors and Aldermen. Councillors are chosen for three years, 
Aldermen for six. The presiding officers of all local Councils 
are elected for one year. 

The renewal of local Councils in England displays several 
variations. Aldermen in both Borough and County Councils 
are chosen one-half at a time, that is to say, one-half every three 
years. Borough Councillors are chosen annually, in other 
words, one-third at a time. The same thing is true in general 
of the members of Urban and Rural District Councils; but the 
County Council is empowered to provide for integral renewal 
of such Councils, if application to that effect is made. So far 
as Councillors in County Councils and members of Parish Coun- 
cils are concerned, integral renewal is the regular practice. 

The matter of eligibility to a Council involves, in general, 
three different principles. In the first place, persons who are 
qualified to vote are eligible. In addition to this, eligibility may 
be acquired by persons who possess property, through lease- 
hold or freehold, in the area involved and by persons who 
have had residence in the area for twelve months. Numerous 
disqualifications exist, such as holding paid office under the 
Council involved, interest in a contract made by the Council, 



262 ENGLISH LOCAL GOVERNMENT 

receipt of public assistance, bankruptcy, and conviction of a 
breach of election law. 

Members of Councils are elected. Aldermen are elected by 
the Councillors in County Councils and by the Councillors and 
"hold-over" Aldermen in Borough Councils. Mayors and 
Council Chairmen are chosen by the several Councils. All other 
members of Councils are elected directly by the qualified voters 
of the area involved. 

The constituency for local elections is generally arranged so 
that the election of one member takes place at a time. Thus, 
in the case of Councils that are partially renewed, the electoral 
area, such for example as the Ward, is usually represented by 
three members, one of them being chosen in each annual elec- 
tion. In cases where the Council is integrally renewed, the 
County Councils being the principal examples, the area is nor- 
mally divided into as many electoral districts as the Council 
contains Councillors. Polling is conducted in a manner gener- 
ally analogous to that practised in national elections. Excep- 
tions are to be found in the fact that Parish Councils, where 
they exisf , are chosen in the Parish Meeting, composed of local 
voters, and that, in a somewhat similar way, Aldermen, Mayors, 
and Chairmen are chosen in a Council meeting. 

The electorate in local areas is, in a certain degree, more re- 
stricted than the national electorate. 1 This is due to the fact 
that somewhat more exacting qualifications for voting are de- 
manded in local than in parliamentary elections. The principle 
involved is based on the belief that a person ought to haye a 
"stake" in the community, if ,he is to have a voice in its affairs. 
Thus, out of deference to this principle, a property qualifica- 
tion is added to the basic qualifications of age and citizenship. 
In order to be a local voter, an adult British citizen must be a 
person who pays rates, as local taxes are called, or must be the 
wife or husband of such a tax-payer. Since rates are paid not 
alone by those who own, but frequently by those who occupy 
land or premises, the local voter must be an "occupier," in the 
accepted legal sense of the term. In practice, this means that 
children of the house and domestic servants may not vote in 

1 Cf. Ch. IV, t>. 26, sutra. 



LOCAL COMMUNITIES AND THEIR AGENCIES 263 

local elections. "Lodgers" who furnish their own furniture 
qualify 5 but this is not true of persons who live in furnished 
lodgings. Certain classes, such as lunatics and felons, are like- 
wise disqualified. On the other hand, qualified peers may vote 
in local elections, though this, of course, does not greatly in- 
crease the electorate. In the result, about fifty percent of the 
population is qualified to vote locally. 

A register of local voters is kept distinct from the register of 
parliamentary electors. The local register is revised once every 
year. As in the case of the parliamentary register, the voter 
need not take the initiative in having his name placed on the 
list of electors, the obligation ' resting on the registration offi- 
cials. As in the case of parliamentary elections, only persons 
who are registered may vote. 

Councils of Boroughs, Counties, Districts, and Parishes are 
each required by law to hold an annual meeting and three 
others. Special meetings may also be called j but this is, in 
practice, not usual in the Counties. One annual Parish Meet- 
ing and one other must take place. Special Meetings may like- 
wise be held. 

The fact that rules of procedure are recognized in local gov- 
ernment as well as in Parliament to be of great importance 
is indicated by the existence of Standing Orders in all Councils. 
Some rules of procedure that are applicable in local govern- 
ment are contained in stipulations of law. For the most part, 
however, the Councils freely make their own Standing Orders. 
In practice, great variety has existed in this respect, some Coun- 
cils being possessed of elaborate codes of rules and Bothers, at 
the opposite extreme, of only a few elementary regulations. 
The Central Government has formulated a model set of rules, 
which it has issued in the hope of influencing Councils to intro- 
duce somewhat more uniformity into their Standing Orders. 

The Mayor, called in some cases the Lord Mayor, who is 
the presiding officer in English Borough Councils, is chosen 
for one year by the Council. He is eligible for indefinite re- 
election j but, in spite of the fact that he is the only paid mem- 
ber of any local authority in England, the financial sacrifice 
occasioned by the numerous demands on the Mayor is said to 



264 ENGLISH LOCAL GOVERNMENT 

cause few Mayors to desire reelection. If the Mayor has been 
chosen from amongst the Aldermen or Councillors, he retains 
his membership in the Council, of course, until the end of the 
term for which he was elected. Hence, if he ceases to be Mayor 
before such time arrives, he reassumes his position as an ordi- 
nary Councillor or Alderman. On the other hand, whether the 
Mayor has been chosen from within or without the Borough 
Council, he continues for a year after the end of his term as 
Mayor to hold certain ex officio positions that devolved upon 
him in his capacity as Mayor. 

The presiding officers in Councils other than Borough Coun- 
cils, the Chairmen, are likewise chosen by the Councils for one 
year. They perform the normal functions of guiding proceed- 
ings according to existing rules. 

The Councils choose certain other officers than their presiding 
officers. Indeed, the Council is the appointing authority with 
respect to the great majority of all local officials. So far as the 
CounciPs own internal organization and working are concerned, 
only a few of such officials, of course, are involved. Of these, 
the most t important is the Clerk. He is a trained lawyer - y and, 
in the course of time, he is likely to acquire an intimate ac- 
quaintance with all the various aspects of the government of the 
area with which he is connected. His position is, in certain 
respects, similar to that of a City or County Manager in the 
United States. 

Like practically every collective body of any size, local Eng- 
lish Councils operate through smaller and more manageable 
organs, more especially through committees. Hence, commit- 
tees form an important, probably the most itnportant, element 
in the organization of local Councils. Some committees, known 
as Statutory Committees, are made mandatory by law. In 
general, there appears in this respect to be less regulation of 
Boroughs than of Counties. Important examples of such Com- 
mittees jre the Education Committee and the Finance Commit- 
tee in Boroughs and Counties and the Watch Committee in 
Boroughs. The size and composition of Statutory Committees 
are regulated by law. Such Committees frequently have 
over thirty members j and their membership in numerous 



LOCAL COMMUNITIES AND THEIR AGENCIES 265 

instances includes persons from outside the Councils. These 
"co-opted" committee members differ little, if any, from Coun- 
cillors. In addition to this, Councils may and do set up on 
their own authority numbers of committees. In general, the 
total number of committees in large Boroughs and in Counties 
tends to range between twenty and thirty. The Councils regu- 
late through their Standing Orders various matters connected 
with committees. A usual size appears to be eleven, though 
committees are frequently larger or smaller than this number. 
The tendency, it is said, is for the committees to become smaller. 

(b) Local Executives 

If local government be thought of as a miniature form of 
general government, no great difficulty attaches to drawing an 
analogy between local Councils and Parliament. On the other 
hand, in respect of the executive, the analogy between local 
government and national government is somewhat less close. 
Thus, although disregard for the Doctrine of the Separation 
of Powers is extended to English Local Government and causes 
Borough government, for example, to be as different from the 
Mayor-Council form of American City Government as the par- 
liamentary system is different from the President-Congress 
relationship, nevertheless, English arrangements for the local 
executive do not appear to resemble the Cabinet System so 
closely as a "strong" Mayor resembles the President of the 
United States. At the same time, in other respects, the analogy 
appears reasonably close in England between local and central 
executives. Indeed, if the classification of the executive in gen- 
eral into formal and real executives and the subdivision of the 
real executive into political and routine executives represent 
fundamental considerations, 1 then, such distinctions /nay be ex- 
pected to manifest themselves, at least to some extent, in 
local government as elsewhere. As a matter of fact, it is by 
no means difficult to draw the analogy under each of the three 
headings between the central and local executives. 

1 Cf. Part IV, Section I, supra. 



266 ENGLISH LOCAL GOVERNMENT 

The best example, perhaps, of a local executive of a formal 
character is the Mayor, or Lord Mayor, 1 of a Borough. On a 
small scale, the Mayor displays a certain number of similarities 
to the King. Many of his activities, such as opening fairs and 
exhibitions and gracing various ceremonies, are not essentially 
different. Indeed, the resemblance is especially striking when 
the King pays an official visit to a Borough. In all the cere- 
monies involved, the Mayor, garbed in all the trappings of his 
office, represents the Borough. He is likely to emerge a Knight. 
At the same time, the Mayor performs a certain number of 
real political functions. As has been pointed out, he presides 
over the meetings of the Borough Council and holds, ex officio, 
certain positions. Thus, in the second respect, he is, during his 
term of office and for a year thereafter, a Justice of the Peace. 

In any consideration of an English Mayor in his connection 
with the executive, it is important to note that he is essentially 
an executive agent of a formal type. His not inconsiderable 
real functions are not primarily executive in character. Thus, 
the English Mayor is essentially unlike the "strong" Mayor of 
American -.Municipal Government. He is not the municipal 
agent primarily responsible for the faithful execution of the 
lawj he is without power of appointment; he has no "veto" of 
municipal enactments j and, in general, he is not, like the Amer- 
ican strong Mayor, the city executive.' The English Mayor is 
rather to be compared with the American agent of the same 
name where the latter is in some instances found connected 
with the Manager form of American City Government. In 
both cases, the Mayor, in so far as he is an executive agent, 
performs primarily ceremonial functions. As presiding officer 
of the Council, he exercises the prerogatives of such an office j 
and he is otherwise not different from other members of the 
Council. Any marked preeminence that he may in some in- 
stances display results from force of personality and character 
and not from legal power. 

1 The difference is merely titular. The distinction of being called 
"Lord Mayor" has, in the case of certain cities, been conferred by the 
Crown. The Lord Mayors of York and of the City of London are 
entitled to be known as "Right Honourable." 



LOCAL COMMUNITIES AND THEIR AGENCIES 267 

Outside the Boroughs, ceremonial functions are not in the 
same degree performed by the corresponding presiding officers 
of the Councils, the Chairmen. The office of the latter has not, 
of course, the same historical associations as that of Mayors. In 
the Counties, such associations cling rather to ancient agents of 
the Historic Counties, such, for example, as the Sheriff and the 
Lord Lieutenant. The Sheriffs, who exist not only in the 
Counties but in about twenty Boroughs as well, are appointed 
by the Crown for the term of a year. They are at the present 
time practically altogether ceremonial officials. For example, 
one of their functions is to meet the King's Justices when the 
latter come into the County on circuit. Real functions of the 
office of Sheriff, such, for example, as those resulting from the 
fact that the Sheriff is the returning officer for the County, are 
for the most part performed by deputies. The Lord Lieuten- 
ant, who was formerly commander of the militia in the County, 
appears in modern times to be thought of, rather than the 
Sheriff, as head of the County. For example, Justices of the 
Peace are appointed by the Crown largely on the advice of the 
Lord Lieutenant, and are, thus, in reality his choice for the 
most part. He acts as chairman of Quarter Sessions. 

The analogy between the central and local executives in 
England is least close in respect of the real political executive. 
Locally, there exists little, if anything, that corresponds to the 
important principles of ministerial responsibility and of execu- 
tive unity, manifested in the paramount position of the Prime 
Minister. In both urban and rural local government, the vari- 
ous committees of the several Councils correspond most nearly 
to the political executive. Such an arrangement is, of course, 
well known in County Government in the United States, and 
it is not unknown exceptionally in American cities j but, in the 
latter respect, the contrast between a committee system and a 
"strong" Mayor or a City Manager is relatively great. In 
England, some tendency apparently exists in the direction of 
development in city government analogous to that in the United 
States j but, so far, the development seems not to have pro- 
ceeded very far. 

In English Local Government, then, the several committees 



268 ENGLISH LOCAL GOVERNMENT 

of a Council, whether committees required by law or commit- 
tees voluntarily set up by the Council, formulate various aspects 
of policy and direct administration of them. This, it may be 
seen, corresponds roughly with the position of the Ministry in 
the central government. In both cases, policy, where it involves 
legislation, must receive the formal approval of the legislature, 
Parliament or Council. In both cases, policy, in all senses, 
must receive the moral support of the legislature. Neverthe- 
less, it is, of course, here that the difference between ministerial 
responsibility to Parliament and the vaguer responsibility of 
local government committees tc a Council is most marked. In 
both cases, again, the executive frequently presents the appear- 
ance of being stronger than the legislature, in the sense that, 
for practical purposes, the executive often decides upon the 
policy or policies to be pursued and the deliberative branch of 
the government appears merely to ratify executive decisions. 
Provided that this is true only immediately and true only of 
particular cases and that fundamentally the conditions of de- 
mocracy exist, no great objection, it would seem, can be raised 
against this situation. However that may be, the general re- 
semblance in this respect between English central and local 
executives appears to exist. At the same time, the causes seem 
somewhat to differ in the two cases. Locally, instead of strong 
executive unity and leadership, of party control, of the power 
of dissolution, and the like, the Council committees can nor- 
mally expect to have their decisions ratified by the Council 
because of somewhat different considerations. Thus, commit- 
tees are for practical purposes continually active, meeting regu- 
larly during the intervals between the relatively infrequent 
Council meetings 5 and, through specialization, they acquire spe- 
cific competencies that are calculated to weigh heavily with the 
Council. In this second respect, the committees have a position 
between the Council on the one hand and the ^routine officials 
on the other roughly analogous to the position of the Ministry 
between Parliament and the Civil Service. 

Local routine officials carry on the day-byniay work of 
administration. Of these employees of local government, the 
existence of some is made mandatory by Act of Parliament. In 



LOCAL COMMUNITIES AND THEIR AGENCIES 269 

the instances, with the exceptions, and on the conditions deter- 
mined by law, such officials include clerks, treasurers, chief 
constables, surveyors, and medical officers of health. In respect 
of all other officers, the Councils have complete discretion. In 
the result, each locality has a considerable staff of employees. 
In large communities, such a staff assumes the proportions of a 
small army. Naturally, in all cases, there exist certain varia- 
tions. Some local agents are only part time officials, whereas 
others serve in no other capacity than that which tends to be- 
come a career. Again, certain persons hold more than one 
local position at the same time. In the case of local officials 
required by Act of Parliament, some cannot, by law, hold at the 
same time two given offices; whereas, in other instances, the 
law permits the same person to assume the capacity of two 
officials. 

Local government employees fall into three general classes. 
Of these, the first consists of persons who perform manual 
labour or persons who do office work of a kind that is not es- 
sentially different from such labour or such work in private 
enterprises. They receive weekly wages, as distinguished from 
salaries. The scale of these wages must manifestly be closely 
related to general business conditions, including the prevailing 
wage in private enterprise for similar work. The second or 
intermediate class is composed "of employees who perform 
various kinds of clerical and technical work that are involved 
in the daily business of local administration. Finally, the 
highest class of local government officials, which is much the 
smallest class, includes the few officials at the top of the system, 
who, as chiefs and assistant-chiefs, direct various aspects bf local 
administration. These agents are, for the most part, men of 
professional training ; and this fact represents a striking differ- 
ence between the Civil Service and the Local Service and, at 
the same time, marks what is commonly regarded as a weak- 
ness of the latter. The recruitment of the professional class 
must of necessity be made from amongst men of specialized 
training, such as doctors, lawyers, and engineers. As a result, 
persons of a broad general education are not, in the circum- 
stances, suitable 5 and university graduates are rarely attracted 



270 ENGLISH LOCAL GOVERNMENT 

into the service. In addition to this, other differences and com- 
parative weaknesses are sometimes pointed out. Thus, there 
appears to exist little promotion to the highest class from the 
lower classes. The professional training required for positions 
at the top is naturally not possessed by employees in the sub- 
ordinate categories 5 and, though some attention is now appar- 
ently being given to the matter, employees in the lower classes 
have little chance of acquiring the necessary training. Finally, 
the highest class of local officials is said to exclude in large 
measure persons of outstanding administrative ability, such as 
those who frequently rise to the top of the Civil Service in the 
central government. It is, of course, not impossible for men 
highly trained in the professions to possess marked adminis- 
trative ability; but it would seem that, in practice, the combina- 
tion is somewhat rarely found in English Local Government. 

Local officials are grouped into the kinds of departments that 
tend to become stereotyped the world over. Thus, to take only 
a few examples of the usual sort, there are departments of 
finance, police, education, and health. As in the case of the 
Executive Departments of the central government, organization 
of local agencies represents the point reached in an evolution 
marked by the related phenomena of increased complexity of 
function and greater differentiation of structure. Indeed, the 
development has in a definite sense proceeded further in the 
case of local government than in that of central government. 
Though local government, of course, operates on a scale that 
is from the nature of the case much smaller than that of central 
government, nevertheless, socialization of the governmental 
process, which is the principal modern form of growth in com- 
plexity of function, has, in local government, taken place in 
certain fields that central government is unlikely to enter for 
some time to come. 1 

The recruitment of local officials in England, though it is 
apparently animated by somewhat the same fundamental spirit 
as that found in the Civil Service, is, in its processes, rather to be 
contrasted than compared with it. In the first place, open com- 
petitive examinations are the exception rather than the rule. 

1 Cf. Ch. XVIII, infra. 



LOCAL COMMUNITIES AND THEIR AGENCIES 27! 

They are in general use only in about fifty of the very large 
communities. Aside from this self-imposed restriction and from 
a relatively few statutory stipulations, local Councils are entirely 
free in their choice of agents of administration. At the same 
time, English practice appears fortunately to be almost wholly 
without the characteristic features*~of the "Spoils System." The 
absence of open competitive examination does not mean that 
serious attempts to choose on merit are lacking. In respect of 
particular vacancies, advertisement is regularly employed, and 
candidates are interviewed. Professional organizations ensure 
that only the competent shall enter the legal, medical, engineer- 
ing, and other professions; so that, in the highest class of local 
officials, examination in reality takes place before a choice is 
made. In the case of the middle class, which is most typical, 
organizations of government officials concern themselves with 
the problems of government service; and other activities mak- 
ing for improvement exist. The class of manual labourers 
appears to present no peculiar problem. Labour Unions and 
other elements of labour relations in general play a part in the 
prevailing situation. 



CHAPTER XVII 
THE FUNCTIONS OF LOCAL GOVERNMENT 

The classification of the functions of local government varies, 
as in the case of all classifications, with the basis of classification 
that is employed and with the other assumptions that are made. 
Thus, in the first place, if local government be conceived of as 
relatively differentiated and as fairly closely analogous to cen- 
tral government, the Council being considered analogous to 
Parliament, the Mayor or similar official to the King, the 
Council committees to the Ministry, and local employees to the 
Civil Service, then, the functions of local government may be 
thought of as the several activities of the several divisions of 
government. In this Way, the functions of local government 
may be looked upon as the functions conventionally classified 
. as legislative and executive. 

I. LEGISLATIVE FUNCTIONS 

The most convenient classification of the functions of modern 
legislatures would seem to reduce such functions to three. 
These are law-making, the administration of public finance, and 
the control of the executive. English local Councils may be 
said to perform functions that are, on a small scale, analogous 
to these three great functions. 

(a) Law-making 

Local Councils may be said to make law. There appears, 
on the whole, to be no objection in England to recognizing that, 
for practical purposes,' this is the case. Some legal theory, it is 
true, asserting that only Parliament can make law, does not rec- 
ognize that local Councils can make law. 1 In France, indeed, 

1 Cf., in this respect, Ch. VI, p. 65, supra. 

272 



THE FUNCTIONS OF LOCAL GOVERNMENT 273 

the view that local governments can legislate is distinctly dis- 
tasteful. Such a sentiment certainly does not appear to be wide- 
spread in England. The practice does exist of speaking of 
local government, especially when considered as a whole and 
viewed in its relationship with central government, as adminis- 
tration; but this does not mean that any great objection exists, 
when local government is viewed in a more restricted perspec- 
tive, to regarding certain actions on the part of local Councils 
as the passing of law. Indeed, current terminology recognizes 
the fact; for Councils are said to pass "by-laws." 

There appears to be nothing in the passage of a by-law strik- 
ingly different from the elements usually regarded as consti- 
tuting the legislative process. A proposed measure, by comply- 
ing with the requirements of a recognized procedure, develops 
from merely potential law into what is proclaimed and agreed 
to be actual law. 

Practically all by-laws considered by a Council are in a definite 
sense proposals of the political executive. This is in general 
true, no matter what the literal origin of a particular measure 
may be. Since reference to a committee is equivalent to submis- 
sion to the political executive, acceptance by a committee means 
that a measure, by receiving its stamp of approval, becomes in 
a definite sense its own. For example, the need or desirability 
of a particular by-law may well be first pointed out to a com- 
mittee by a permanent official; and, for practical purposes, the 
influence of the official may have been the determining factor 
in gaining acceptance of the measure. Nevertheless, the poli- 
tical executive, that is to say, the committee, being the respon- 
sible agency, makes the measure its own. In the same way, 
action by the Council may amount to little more than formal 
ratification of the committee's proposal; for the competence of 
the committee will normally be assured. Hence, the generali- 
zation is sometimes encountered that, for practical purposes, 
the Council does what the committee says and the committee 
does what the official says. As a result, some practical persons 
appear to conclude that something must be wrong with the 
process. This is, in reality, to cast doubt on the democratic 



274 ENGLISH LOCAL GOVERNMENT 

process at its very root. The logical implication suggested 
seems to be that experienced officials are alone needed in local 
government. In reality, such officials are, of course, highly 
desirable; but, even if every action on the part of committee 
and Council should without exception assume a "rubber stamp" 
appearance, nevertheless, the element of responsibility, however 
vague and abstract it may seem, cannot be ignored. A system 
of government may easily be imagined in which all local au- 
thorities except permanent officials would be eliminated; but to 
imagine it is all that is necessary in order to recognize that such 
government would in no real sense 'be government through 
consent of the people involved. 

By-laws, once brought before a Council for approval, are ex- 
amined at greater or less length, depending on circumstances. 
In general, the Council follows the principles of parliamentary 
procedure, as manifested in satutory requirements, in the Stand- 
ing Orders of the Council, and in precedent and tradition. 
Finally, a vote by the Council takes place. It is the last local 
word in the matter. If the proposed by-law is defeated, the only 
chance of its passage is through reconsideration at a later date. 
No popular initiative exists, as in some communities in the 
United States. If, on the other hand, the vote of the Council 
is affirmative, no local government authority except the Coun- 
cil can undo what has been done. There is no executive "veto" 
such as that generally possessed by "strong" American mayors; 
and there is no referendum such as exists in some American 
localities. However, any interested individual has the oppor- 
tunity of proving in court that a Council exceeded its authority 
in passing an alleged by-law; and, furthermore, the central 
government may yet have a word in the matter. Thus, a by- 
law dealing with public health is not binding until it has been 
approved by the Ministry of Health. Then, again, a by-law 
passed with the purpose of exercising what is known as "police 
power" in the United States is not binding for forty days, 
during which 'period the Home Office may have it annulled 
through an Order in Council. However, the assumption should 
not be made that, in practice, interference is frequent or irk- 
some. 



THE FUNCTIONS OF LOCAL GOVERNMENT 275 

(b) Administration of Finance 

The most important single function of local Councils, as in 
the case of national legislatures, is the administration of public 
finance. Indeed, there are various resemblances between na- 
tional and local finance. More particularly, both involve the 
twin problems of how much money is to be spent and what 
sources of revenue can be employed. At the same time, there 
exists at least one important difference in degree. The condi- 
tion in virtue of which a great national government decides on 
the amount of money it will spend, through determination of 
the ends of government it desires to accomplish, assuming that 
if the end is desirable the means can be found, is much less 
present in local government. Even in the case of a great 
national government, of course, resources are not literally 
limitless; to the income of local governments there are definite 
limits. Hence, the problem of what activities local govern- 
ment ought to undertake is affected in considerably greater 
degree than in the case of central government by the problem 
of finding money. In other words, the desirable is greatly more 
dependent on the question of the possible. Nevertheless, on a 
small scale, in local government as in central government, the 
very practical and very material question of finance is closely 
interconnected with the highly theoretical problem of deter- 
mining the most desirable dividing lifie between public and 
private activity .^ 

Local Councils, in approving proposals for the expenditure of 
public money, follow a procedure that, in general outlines,- is 
similar to that followed in Parliament, In the one case as in 
the other, this procedure resembles legislative procedure, with 
such modifications as the special nature of the problem requires. 
In local government, since committees correspond roughly to 
the several Ministries, estimates of expenditure are made by 
committees. Just as, in the case of the central government, the 
estimates are based on the advice and recommendation of the 
Civil Service, so, in local government, the committees are, with 
respect to finance as with respect to other matters, dependent 



276 ENGLISH LOCAL GOVERNMENT 

in marked degree on the permanent officials. Finally, a local 
Finance Committee undertakes, in connection with all estimates, 
an effort of coordination and economy analogous to that 
made by the national Treasury. The estimates are presented 
to the Council in the early spring. They are without great 
delay discussed, on occasion amended, and finally passed by 
the Council. 

When a local Council has passed the estimates and thus de- 
termined the amount of money to be expended, it must then, 
of course, if the budget is to be in balance, be able to foresee 
resources equivalent to the amount of proposed expenditure. 
The most important item of local revenue, an item over which 
the Council has complete control and to which the Council must 
look to make up the difference between the sum of expenditure 
and the amount to be counted on from other sources, is direct 
taxation. This taxation takes the form of taxes on real prop- 
erty, which are called rates. These taxes are known as rates 
because they are expressed in terms of the ratio of the money to 
be raised to the annual value of real property. Therefore, in 
order for^a Council to determine its rate, it must know not only 
the amount of money it desires to raise by direct taxation but 
also the value of real property within the community. As a 
matter of fact, each Council does know the valuation of property 
in its community. It knows this because an assessment is made 
every five years. The process of assessment itself is somewhat 
elaborate. It involves tentative valuation mdde by local officials 
after examination of every case, publication of the list, and 
decision by an independent authority, the Assessment Commit- 
tee, with respect to grievances alleged by either private indi- 
viduals or local authorities. The process may further involve, 
on occasion, arbitration or appeal to local and even the highest 
national courts. 

The value of real property assessed in England for purposes 
of local taxation is, it may be emphasized, the "annual value" 
of the property. This situation, of course, represents a marked 
contrast with the analogous situation in the United States, 
where property is, in theory, assessed in terms of sale value. 
Annual value is, roughly speaking, reckoned as the amount for 



THE FUNCTIONS OF LOCAL GOVERNMENT 277 

which the property might fairly be rented for a year. By waj 
of exception, industrial property, such as factories and mines 
is assessed at one-fourth its value. Agricultural land and 
buildings used in direct connection with agriculture are not as 
sessed at all for purposes of rating. 

The amount of money to be raised by direct taxation divided 
by the assessed value of the ratable property in a given com- 
munity determines the rate for that community. This calcula 
tion is approved by the Council. However, in the case of 
Counties, with which may be associated the Parishes, the 
Council may not directly levy the rate determined upon. It 
proceeds by what is known as "precept," that is to sgy, it informs 
the Councils of Boroughs and of Urban and Rural Districts oi 
the rate required and these Councils, which, unlike County and 
Parish Councils are known as rating authorities, must levy the 
rate mentioned in the "precept" as well, as the rates that the) 
themselves require. Payment, it may be noted, represents an- 
other contrast with the United States ; for, in England, the 
"occupiers" of property, whether or not they are the owners, 
pay the rates. 

Local authorities derive revenue from several other sources 
than the rates. Of especial interest and importance are loans. 
contributions from the central government, and various fees, 
rents, and the like. 

The revenue that accrues to localities through such direct 
payments as rents and fees varies considerably with circum- 
stances. Some localities own very much more property than 
others, and, furthermore, the value of property varies because 
of circumstances over which the locality, for the most part, has 
no control. At all events, whatever the differences, money 
comes in from locally owned property. Then, again, localities 
differ in their policy with respect to the socialization of certain 
activities. Some possess municipally owned and operated gas 
or electric plants and tramway systems, whereas others in large 
measure refrain from such undertakings. Moreover, in the 
first case, the policy is in some instances to earn a profit, in 
others not. Altogether, about one-third of total local income 
is derived from this kind of sources. 



278 ENGLISH LOCAL GOVERNMENT 

For certain purposes, more especially for capital outlay, local 
Councils raise money by borrowing. In this case, a Council has 
not the same freedom as in the matter of rates. It may decide 
that a loan is desirable, but it must receive from the central 
government approval of the purpose proposed and of the sum 
contemplated. This approval is given in some cases by Parlia- 
ment, but more frequently by an Executive Department of the 
central government. In either case, the matter of local bor- 
rowing is an instructive aspect of a large question of transcend- 
ent importance, namely, the question of the relationship between 
local government and central government. 1 

When central approval of a local loan has been given, the 
local Council may undertake to borrow the money in any way 
it sees fit. As a matter of fact, the Council may not only go 
into the money market like any borrower but it can, in certain 
cases, secure the money through loan from the central govern- 
ment itself. In round figures, the local authorities as a whole 
raise about twenty per cent of their revenue by loans. 

Finally, a considerable amount of the revenue of localities is 
derived from grants that are made by the central government. 
These contributions are known as grants-in-aid. They are based 
on a recognition of the fact that even such concerns of govern- 
ment as are essentially and properly local ought not to be, can- 
not be, and are not matters of complete indifference to the nation 
as a whole. The government of the nation demonstrates this 
by setting up on occasion certain legal requirements with which 
the localities must comply and, in other cases, by encouraging 
improvements and higher standards in the localities. The fact 
that the requirements exist is a justification for national grants, 
which, after all, represent in a certain measure money paid by 
national tax-payers who are also, roughly speaking, the same 
persons as pay local rates; and, in the case of encouragement 
to the localities, grants-in-aid are, aside from the question of 
justification, a simple and effective means to an end. Moreover, 
grants-in-aid may be justified, as may be the unequal geograph- 
ical outlay of national funds in the case of the performance of 

1 Cf. Ch. XIX, p. 298, mfra. 



THE FUNCTIONS OF LOCAL GOVERNMENT 279 

national functions, by the fact that the wealth and needs of 
various localities greatly differ. 

Grants-in-aid are made either in respect of specific matters, 
such as police and education, or for the purpose of serving as 
contributions to the payment of the general expenses of local 
government. In the case of specific grants, the central govern- 
ment contributes, on the condition that certain standards are 
maintained by the localities, a certain percentage of the outlay 
made in connection with a particular function. The size of the 
percentage is reckoned in various ways, sometimes by a highly 
complicated formula j but the fact is manifest that, in general, 
the more a given locality undertakes, the greater is the size of 
the contribution made from the national treasury. Grants 
made, in addition to the percentage grants, for the purpose of 
aiding localities in meeting their general expenses have come 
to be called block grants. They are basically regulated by an im- 
portant Act of Parliament, the Local Government Act of 1929. 
Each County Borough and each County receive a certain grant 
reckoned in a somewhat complicated way, with population as a 
primary consideration. The amount received by each locality 
through such block grant likewise varies somewhat with the 
scale on which the locality undertakes its government, and the 
grant is thus to some extent an encouragement to the expansion 
of local activity j but the variation is far from being so directly 
affected by local activity as in the case of percentage grants. 
The County Borough spends for its own purposes all of its 
share of a block grant j but the block grant of the County is 
shared with the lesser divisions of the County. The total sum 
distributed through block grants represents a fusion of three 
items. It includes, in the first place, certain sums previously 
paid by the central government in the form of percentage 
grants; it includes, in the second place, certain sums formerly 
available to the localities through the levying of rates, but 
now no longer available because, through what is known as 
derating^ certain properties are by the Act of 1929 relieved of 
this levy; and, finally, it includes a certain variable sum added 
by the same Act. 

The central government, through the employment of 



280 ENGLISH LOCAL GOVERNMENT 

grants-in-aid, clearly possesses a formidable power of control 
over local government. Indeed, the various kinds of control 
that the central government exercises all rest fundamentally on 
the basis of financial power. So far as grants-in-aid are spe- 
cifically concerned, the central government does not hesitate 
to exercise in practice some of the potential control that it pos- 
sesses. It does this through the establishment of standards, 
through inspection, through threat of withdrawal of grants, and 
so on. As a result, in England, % as well as in other countries 
where identical or similar expedients are employed, it is some- 
times said that the central government "bribes" the localities 
to accept its will. On the other hand, higher standards and 
greater efficiency in local government not only can be, but fre- 
quently are, effected through a wise use of grantin-aid. The 
English tradition for local self-government seems to prevent 
any considerable abuse through undue meddling. During the 
period in which the Local Government Act of 1929 was being 
studied, prepared, and passed, agreement was many times ex- 
pressed on all sides that great care ought to be taken to avoid 
any injury to the principle of local self-government. 

(c) Control of the Executive 

If local Councils are\by analogy to be regarded as perform- 
ing the same three functions as Parliament, then, the third 
function of these Councils is that of maintaining an oversight 
of the policy of the Executive. The local Councils undoubtedly 
do this. At the same time, the analogy here is perhaps less 
close than in the case of legislation and financial administration. 
An initial difference of fundamental importance is, of course, 
the fact that the parliamentary system of government is not 
practised in the local communities. Consequently, the char- 
acteristic phenomenon, ministerial responsibility, does not exist, 
because the local political executive, consisting for the most part 
of Council committees, is not very much unified and is not 
literally composed of ministers, and because the interrelated 
phenomena of control and responsibility have not in local 
government resulted in the well established normal procedure 



THE FUNCTIONS OF LOCAL GOVERNMENT 28l 

of resignation. Nevertheless, most of the elements of the 
parliamentary system are present either potentially or in prac- 
tice. The final word, based on the power of the purse, rests 
with the Councils. The Councils may and do demand and 
secure information, and they may and do criticize. To the 
Councils belongs the decision in matters of policy ; and the 
Councils may undoubtedly secure executives acceptable to them- 
selves. The difference is the fact that these elements have not 
been fully organized into the political arrangement that has 
come to be known as the parliamentary system. After all, 
local government is only analogous with, not identical with, 
central government. The distinction between legislative policy 
and executive policy can be drawn much less clearly in local 
affairs than in central. Local Councils in some measure directly 
determine both kinds of policy. Indeed, it is almost true to say 
that the distinction does not really exist and that there are ac- 
tually not two kinds of policy. In other words, differentiation 
is not highly developed. As a matter of fact, in general, the 
biological analogy that offers a clue to an understanding of the 
history of central government is the key to an appreciation of 
the practice of local government. The process of government 
on a small scale is, in general, less complicated than govern- 
ment on a large scale. 1 Hence, if nature demands that relative 
simplicity of function and a relatively undifferentiated organiza- 
tion appear together, then, not only is the absence of the par- 
liamentary system in English Local Government easily under- 
standable j many of its simple aspects appear entirely natural. 

2. EXECUTIVE FUNCTIONS 

Since the relatively simple character of local government as 
a process is matched by its comparatively undifferentiated char- 
acter as an organization, analogy between the functions of the 
Executive in the central government and those of the Execu* 

1 This generalization applies only to the activities of government asso- 
ciated with different agents and organs. In the broader sense, socialization, 
as has been noted and as will be observed later, has proceeded further in 
local government than in national government. 



282 ^ENGLISH LOCAL GOVERNMENT 

tive in local government is, from the nature of the case, fre- 
quently far from close. It is true that if the local Executive 
is classified on the basis of analogy with the central Executive, 
a general resemblance of functions in the two cases will inevit- 
ably appear to exist $ but it cannot be expected that distinctions 
^hich are not always clear-cut even on a national scale are to 
be made with equal accuracy locally. Thus, for example, a 
Mayor performs numerous formal functions, similar to those 
performed by the King and other Heads of States. On the 
other hand, the Mayor, as an integral part of a Council, plays a 
role in the performance of legislative functions. In fact, since 
these legislative functions are real rather than formal, a good 
case could be made out for classifying the Mayor as a legisla- 
tive rather than as an executive agent. At all events, the ex- 
ample shows how distinctions tend to break down locally. 
Again, if the Council Committees are to be classified as the Po- 
litical Executive, the differences between the situations on a 
national and a local scale are perhaps greater than the resem- 
blances. More especially, the difficulty of distinguishing on 
any fundamental grounds between Council action and commit- 
tee action has little counterpart in the case of central govern- 
ment. Thus, locally, functions that are commonly regarded 
as executive in character, such for example as appointment and 
removal, are, in important cases, performed by the Councils. 
Finally, the permanent officials have much in common with 
Civil Servants 5 and yet, to take only one important principle, 
the fact that the Council and its committees are largely identical 
results in a direct relationship between legislature and routine 
executive that has no close similarity with the situation on a 
national scale. 



CHAPTER XVIII 
GENERAL ACTIVITIES OF LOCAL GOVERNMENT 

The question of what governments do, that is to say, the 
question of the functions of government, may be considered 
from two related, but somewhat different, points of view. On 
the one hand, governments do such things as make law, admin- 
ister finance, and undertake concomitant activities like carrying 
out law, determining appointments and removals, conducting 
foreign relations, and so on. In the second place, the question 
of the functions of government may in general be conceived of 
in erms of the subject with which legislation, administration, 
and the like are concerned. Examples of functions in this sense 
are things like public health, education, public works, and so 
on. Whether between these two kinds of functions any abso- 
lute distinction can be made or any fixed relationship can be 
determined is doubtful. Nevertheless, a few broad consider- 
ations seem to be roughly applicable. 

The distinction between the senses in which the idea of gov- 
ernmental functions presents itself is, in the first place, a dis- 
tinction based in some measure on the difference between the 
structure of government conceived of as a unity and the same 
structure viewed in terms of its several component parts. On 
the whole, it is perhaps with the several branches of govern- 
ment, rather than with government as a whole, that functions 
in the first sense, that is to say, activities like legislation and 
like appointment and removal, are more naturally associated. 
The legislature makes laws, the executive makes appointments 
and removals, and so on. On the other hand, the proposition 
that education is a function of government involves, in general, 
the idea of an undertaking on the part of government as a 
whole, as contrasted with the activities of non-governmental 
agencies. Nevertheless, this way of looking at the matter can- 
not be pushed too far. A thing like law-making can be, and is, 

283 



284 ENGLISH LOCAL GOVERNMENT 

thought of not only as an activity of the legislative branch of 
government but as a very typical activity of government as a 
whole, in fact, as a distinguishing characteristic of government 
as contrasted with private enterprise j whereas education, in so 
far as it is a governmental, as distinguished from a private, 
undertaking, is to be associated not only with government as a 
whole but, in many of its aspects, with a particular branch of 
government. Again, the distinction may, perhaps, be viewed 
as less closely connected with the structure of government and 
with discrete and concrete aspects of this structure, but rather in 
terms of the relationship between the two kinds of functions. 
From this point of view, they differ as means and end. 

The application of a distinction between means and end to 
certain simple governmental functions, taken as examples,,, 
presents no great difficulty. Thus, education of certain parts of 
the population may be decided upon as a praiseworthy objective 
of government. Such education may thereupon be said to be a 
function, in the sense of an end, of public enterprise ; and the 
various types of functions like legislation, appointment, removal, 
purchasing, and so on serve in a definite sense as means towards 
the end. 

The distinction that may be made between certain functions 
of government viewed as ends and certain functions viewed as 
means is, in general, the same distinction that is sometimes 
made, especially in connection with local government, between 
what are called staff functions and line functions. In this sec- 
ond respect, the functions of local government are commonly 
thought of in terms of services that are performed. If a func- 
tion involves performance of a service directly for the people, 
it is called a line f unction ; if a service is performed only indi- 
rectly for the people, a staff function is involved. This is 
manifestly another way of applying the relationship of means 
and end. 

Whether functions are viewed in their relationship of means 
to end or of staff to line, the distinction cannot, of course, be 
pushed too far. After all, the whole matter, it must be remem- 
bered, is a relative one. A given function is often an end to- 
wards which other functions serve as means and yet itself a 



GENERAL ACTIVITIES OF LOCAL GOVERNMENT 285 

means towards another end. Furthermore, and most important 
of all, every function is directly or indirectly a means of secur- 
ing the common good or the general welfare, which may be 
regarded as the final or ultimate function or end of govern- 
ment. 

The question of whether government ought to undertake 
a given activity is clearly related closely to the ancient problem 
of the reconciliation of liberty and authority. In some sense, 
every activity that is made a function of public authority less- 
ens the amount of liberty for the individual. Thus, the rec- 
onciliation of authority and liberty involves, in some sense, 
a balancing of the interests of the public or society, on the one 
hand, and of the interests of the individuals who compose the 
public or society, on the other. HoWever, such a statement of 
the question errs in making the matter too abstract. The re- 
lationship involved is not one of abstract individuals to an 
abstract society. It is a relationship of real individuals to a 
given community. Thus, the question whether public author- 
ity ought to undertake a particular function may depend in 
considerable measure on what public is involved. Many people 
who might approve of a municipally owned and operated street- 
car system, gas plant, or golf links would seriously object to 
such activities if undertaken by a national government. In 
other words, the fundamental question of the end of govern- 
ment varies somewhat, depending on whether it is viewed lo- 
cally or nationally. 

The fact that local government may be regarded, for pur- 
poses of analogy, as general government in miniature is of 
particular importance and interest with respect to the final ques- 
tion of political science, that is to say, the problem of what 
activities government ought to undertake. There is, in the 
perspective presented by local government, a greater possibility 
of viewing the problem whole. Understanding of the problem 
of the function of government, of the problem, that is to say, of 
what government ought to do, is in large measure dependent 
on what government has done and does do; and the vast ex- 
perience of local government is in this respect of inestimable 
value. 



286 ENGLISH LOCAL GOVERNMENT 

Much difference of opinion honest difference of opinion 
has existed and does exist concerning what activities govern- 
ment ought to undertake. Aside from anarchists, who theo- 
retically hold that all government is evil, that it should not 
exist, and, as a consequence, that government should not under- 
take any activities, all people agree that some government must 
exist. They differ with respect to how much; and these dif- 
ferences, in turn, are due to various considerations. 

Difference of opinion concerning the proper function of gov- 
ernment is affected by at least two important questions. One 
is the question that is encountered in connection with Political 
Parties, namely, whether the public welfare is interpreted in 
terms of the few or the manyj and the other is the question 
whether political power is for the time being in the hands of 
the few and those who interpret the general welfare in terms 
of the few or in the hands of the many and those who interpret 
the general welfare in terms of the many. Since these matters 
vary from time to time, views concerning the function of gov- 
ernment are not absolute but relative. At the same time, what 
are in reality tendencies or emphases are frequently stated as 
if they were general principles. For example, there exists in 
theory a principle known as individualism, according to which 
government ought to undertake only such activities as are ab- 
solutely necessary. Groups that are at a given time excluded 
from political power or that feel that their possession of political 
power is insecure tend to subscribe to this view or to pretend 
that they do. At the other extreme is a view, commonly called 
socialism, which is alleged to hold that government ought to 
perform or regulate all important human activities. In prac- 
tice, those who possess political power frequently find it neces- 
sary or desirable to extend the activities of government. As a 
result, a general tendency may be observed away from individ- 
ualism and towards socialism. Some people dislike this un- 
doubted fact so much that they deny it. The study of local 
government is in this respect particularly instructive. The 
functions, per formed by local government in England, with the 
consequent problems of classifying local activities and of or- 
ganizing local government departments, are, if viewed in proper 



GENERAL ACTIVITIES OF LOCAL GOVERNMENT 287 

perspective, an indication of the distance that extreme individ- 
ualism has been left behind. 

Just as the problem of what activities ought to be performed 
by government varies according to whether the government 
involved is national or local, so, the problem varies in respect 
of the several types of local authorities. However, for pur- 
poses of convenience, the activities of the governments of the 
several local communities may be grouped together. 

The functions of local government, or, as is frequently said 
in England, the services provided, cover a wide range. They 
include such items as Police, Roads, Health, Public Assistance, 
Education, Trading, and the like. Even a random list of this 
kind serves to indicate that local government undertakes various 
activities that can scarcely be justified on strict individualistic 
grounds, that is to say, on the ground that their performance 
is strictly necessary. However, the various activities of local 
government, it must be remembered, were not undertaken for 
the first time all at one period. Some of the earlier can without 
great difficulty be justified on individualistic grounds $ and each 
function undertaken seemed at the time a natural extension of 
some function already performed. Hence, the process of 
growth was relatively slow; and it is only when somewhat 
widely separated points in the process are viewed in relation to 
each other that the extent of the socialization of government 
becomes manifest. 

In any classification of the functions or services of govern- 
ment, protection will usually be ranked first. The most extreme 
individualist view, short of anarchism, recognizes that govern- 
ment must offer protection to the individuals who compose 
society. Since individualistic theory asserts in general that in- 
dividuals should be free to do as they like, so long as they do 
not harm other individuals, the implication is clearly involved 
that individuals must be prevented from harming other in- 
dividuals. Such prevention is a function of government. In- 
deed, according to strict individualistic doctrine, it is the only 
true function of government. This function of protection nor- 
mally involves the police. 

In modern times, the protective or police function is fre- 



288 ENGLISH LOCAL GQVERNMENT 

quently conceived of as being so broad as to cover a great 
many activities. In its original and narrower aspect, it may 
be thought of merely as involving protection of the individual 
person against violence. Logically, such protection of the 
human person may be conceived of as separate from and anterior 
to protection of personal property from violence 5 but, historically, 
the accuracy of such a concept would be very doubtful. Appar- 
ently, protection from violence was, in its origin, closely 
connected with the view of persons of property that they must 
anticipate violence from people without property. Hence, the 
earliest and simplest, though not necessarily the most impor- 
tant, function is the police service; and this function, in turn, 
is, in its simplest aspect, equivalent to the protection of persons 
and property from violence. 

In England, police protection is essentially a local function. 
There is no national constabulary directed by a central authority. 
Aside from the City of London and from the Metropolitan 
Police District, the Boroughs and Counties are the primary 
areas for police purposes. In each of these areas, there is a 
Chief Constable, who bears to a Committee the relationship of 
Routine to policy-forming agency. The Committee is, in the 
case of the Borough, the Watch Committee, which consists of 
the Mayor ex officio and of not more than one-third of the 
Council. In the case of the County, the Committee is known as 
the Standing Joint Committee and is composed of an equal 
number of members of the Council and of Justices of the 
Peace. The central government lays down regulations for 
police administration and maintains a service of inspection of 
the local police. Where the inspection shows that the proper 
standards are maintained, the central government contributes 
one-half of the expenditure. 

If protection to an individual from another individual can 
easily be conceived as extended to protection of an individual's 
property from another individual, a further extension to include 
protection to property from other than human danger may be 
made with equal ease. Fire is a well-known example of such 
danger. Fire-^protection y which, owing to the fact that less com- 
bustible materials are used in English buildings, appears to be 



GENERAL ACTIVITIES OF LOCAL GOVERNMENT 289 

a less important local activity in England than in the United 
States, is commonly regarded nowadays as one aspect of the 
police function. Moreover, the effort to deal with a fire after 
it has occurred tends to become of secondary importance com- 
pared with attempts to remove, so far as possible, the causes 
of the fire. In other words, fire-protection involves not only 
fire-fighting but fire-prevention. 

The simple extension of individualist doctrine to include fire 
protection involves a recognition of two principles according to 
which far-reaching additional extension becomes wholly logical. 
The first of these principles recognized is that the protection 
of individuals and their property against enemies and dangers 
involves other things than violent individuals. For example, 
disease and ignorance are greater enemies and dangers than 
murderers, housebreakers, and incendiaries. Thus, a seemingly 
natural extension of individualist doctrine leads to the accept- 
ance of public health and public education as proper govern- 
mental functions. The second principle recognized in fire pro- 
tection is that governmental activity includes not only a negative 
kind of protection that consists of treating a danger after it pre- 
sents itself but also a positive protection that takes action aimed 
at the causes of danger. Once this is accepted, almost any ex- 
tension becomes logical; and the problem of the function of 
government becomes much more complex than any simple in- 
dividualist statement of it implies. Thus, not only may educa- 
tion and public health services be conceived of as protection 
against the dangers of ignorance and disease - y they are undoubt- 
edly important preventives in respect of criminality. More- 
over, each, in its own sphere, may easily assume both negative 
and positive aspects. For example, when public health work 
is extended from treatment of disease and quarantine of per- 
sons afflicted with communicable diseases to efforts aimed at 
preventing disease, various other activities become involved. 
Such activities range from sewage disposal through the main- 
tenance of generally hygienic conditions to the furnishing of a 
plentiful supply of clean water. 

In England, Public Health and Education are exceedingly 
important local functions. Not only are Boroughs and Counties 



29O ENGLISH LOCAL GOVERNMENT 

concerned with Public Health, but Urban and Rural Districts and 
in some cases, Parishes are involved as well. In fact, Public 
Health may be regarded as the primary function of modern 
English Local Government. This is symbolized by the fact that 
the Ministry of Health is the principal agency of the central gov- 
ernment that is concerned with local government, having sup- 
planted in 1919 the old Local Government Board. So far as 
Education is concerned, its administration is a far-reaching func- 
tion of County Boroughs and Counties and, sometimes, of 
Municipal Boroughs and Urban Districts. A central Depart- 
ment of government, the Board of Education, exists for pur- 
poses of superintendence. 

Things like Education and water supply are examples of 
governmental activities that cannot literally be justified on in- 
dividualist grounds. Though they represent an easy and 
natural extension of the individualist concept of protection, they 
are services that could, strictly speaking, be provided by private 
enterprise. However, once the function of government comes 
to be thought of as including the service of providing things, 
the way* becomes open for indefinite expansion in various direc- 
tions. If the idea becomes established that a certain thing, such 
for example as roads, is necessary, the superior convenience is 
manifest of having the thing provided through cooperative ef- 
fort, that is to say, through government, rather than through 
individual enterprise. 

In England, Roads and the things that they involve' are a 
primary concern of local government. The establishment, 
maintenance, and regulation of streets, highways, and bridges 
are matters with which Boroughs and Counties regularly dealj 
and, in the case of Counties, certain responsibilities are devolved 
upon its subdivisions. The Ministry of Transport maintains 
a general supervision. 

When the superior convenience has been recognized of co- 
operative effort in respect of that which is necessary, only a short 
step leads to recognition of the convenience of similar effort in 
connection with what is desirable. Thus, for example, though 
certain individuals or families can possess their own libraries, 
they cannot, unless they are exceedingly wealthy, own the va- 



GENERAL ACTIVITIES OF LOCAL GOVERNMENT 

riety of books that are to be found in a public library. On 
the basis of this same principle, a great variety of activities is, 
in modern times, included in the category of social welfare. 
This result of abandoning a concept of government as serving 
only the purpose of protecting individuals from the conse- 
quences of being left to their own devices in favour of a concept 
of government as providing various things to people leads to a 
point where government, in the name of welfare, furnishes 
things like opera houses, golf links, and swimming pools, which 
would generally be admitted to be luxuries. 

The function of government that is perhaps furthest removed 
from extreme individualist doctrine is what is in England called 
trading. This involves public ownership and operation of such 
things as markets, gas plants, electric plants, and street-car lines. 
The activities concerned are not only activities that could theo- 
retically be performed by private enterprise ; they frequently are 
performed in that way. At the same time, many of them repre- 
sent somewhat natural extension of functions that have come 
to be regarded as governmental in character. The whole ques- 
tion is a highly controversial one. However that may be, the 
performance of such activities by local government in England 
is frankly recognized to be socialism. It is an indication of how 
far departure has been made from rigid individualism. 



CHAPTER XIX 
THE POWERS OF LOCAL GOVERNMENT 

The question of whether or not a particular activity ought to 
be undertaken by public authority is not so simple a question 
in respect of local government as it is in respect of central gov- 
ernment. If Parliament is faced with the question whether it 
ought to perform a given function, it has merely to balance the 
advantages of the proposed line of action against its disadvan- 
tages in terms of the general welfare. In a similar situation, 
a local agency must not only undertake such comparison ; it must 
ask itself a question that Parliament need not ask itself. The 
local agency must ask itself whether it possesses the authority 
to do a thing that it has decided, or might decide, to be desirable. 
The simple reason is that all local agencies, unlike Parliament, 
possess only such authority as has been given to them. More- 
over, thfcy are not always completely free to exercise as they 
see fit all the authority that has been given to them. In other 
words, the problem of the function of local government is 
closely connected with the question of the power of local gov- 
ernment and with the matter of control over local government. 

The agencies of local government derive all their authority 
from Parliament. Therefore, the law that forms the source of 
their authority is statutory in character. On the other hand, 
agencies of local government must not violate the general law 
of the country that is applicable to them. Hence, since the 
Common Law is part of this general law, the Common Law, 
though it now seems to be recognized to be incapable of con- 
ferring authority upon local agencies, does serve to participate 
in fixing the legal boundaries within which local agencies oper- 
ate. The boundaries of the authority of any local agency are, 
in other words, defined in both a positive and negative sense by 
law. 

Local agencies, in being forbidden to violate the general law 

292 



THE POWERS OF LOCAL GOVERNMENT 293 

of the country, are clearly analogous to private individuals. 
On the other hand, with respect to more positive action, such 
agencies are commonly contrasted with ordinary human indi- 
viduals. The individual, according to this contrast, may, on 
his own initiative, undertake anything he likes, so long as he 
does not violate the law; whereas a local agency may under- 
take only what it is specifically authorized by statutory law to 
undertake. 

There is another important respect in which local government 
is to be compared and contrasted with private individuals. The 
whole matter is connected with the phenomenon of incorpora- 
tion. In all areas of local government in England, a corpora- 
tion exists. This means that either all the citizens or else the 
governing body of the community have been made, for pur- 
poses of legal convenience, into a person. A corporation, though 
it has from the nature of the case many resemblances to an in- 
dividual person, is sometimes called an artificial person. At 
all events, a corporation differs from a human individual in one 
simple but important respect. It can act only through agents. 
A private person, as is well known, may either do a thing for 
himself or get someone else to do it for him. Moreover, he 
is legally as much responsible for the action of his authorized 
agent as if he had performed the action himself. In the case 
of a corporation, which can act only through agents, all acts 
that may be called acts of the corporation must be acts of agents. 
In other words, all true actions of local government must be 
within a defined sphere of agency. 

The law is the measure of whether a given action is in reality 
the action of a given agency ; or, as is frequently said for con- 
venience if with some want of accuracy, the law determines the 
validity of the action of a local agency. In general, it may be 
said that any action of a local agency is invalid if the local 
agency does not possess the legal authority to perform the 
action 5 but, strictly speaking, the action, in such a case, is not in 
reality the action of the local agency. Since a local agency has 
no existence as a local agency except in so far as its constitution 
and activities are defined by law, any action that is not recog- 
nized by law to fall within the authority of an agency is not 



294 ENGLISH LOCAL GOVERNMENT 

jjui action of that agency. Thus, contrary to fairly common par- 
lance, a governmental agency cannot, strictly speaking, perform 
an illegal or invalid action. That an action, in a physical sense, 
takes place there is no denying; that a person or group of per- 
sons who are normally denominated a governmental agency 
actually perform a physical action is equally certain; but, in the 
eyes of the law, the person or persons involved perform the 
action in their personal capacity, not in their capacity as agents 
of government. The action is said to be ultra vires, which is 
equivalent to saying that it is not a governmental action. There- 
fore, an invalid or an illegal or an ultra vires action in connec- 
tion with local government is an alleged action of a person or 
persons alleged to be a local agency. 

The distinction between the private and public capacity of 
persons normally referred to as agents of government, which 
serves as the measure of the validity or the invalidity of an 
action, has the effect, in practice, of bringing the judicial branch 
of government into play in connection with local government. 
In general, any individual who is involved may in effect resist 
an attempted employment of authority by local government, 
on the ground that the attempt is ultra vires. Determination 
in the matter is made by the judiciary. If the court agrees with 
the individual concerned, it takes the position that it must de- 
cline to enforce the attempted employment of authority, on the 
ground that the court applies only what is law. Similarly, in 
general, an attempt on the part of an individual to prove that 
he has been wronged by an agent of government is viewed by 
the courts in terms of the question whether the alleged wrong- 
doer was acting in his public or private capacity. In order for 
an individual person to commit a legal wrong, he must violate 
a law; but, since an agent of government as such cannot violate 
the law, redress must be sought against a private individual, who 
is also, though not in the given case, an agent of government. 

Although local government in England is endowed with 
powers only through statutory enactment, the nature and extent 
of such powers are affected by the fact that powers are granted 
through several kinds of enactment. In practice, local p9wers 
are granted in some five varieties of statutes. 



THE POWERS OF LOCAL GOVERNMENT 295 

Certain Acts of Parliament confer power in general upon 
one or more classes of local agencies. These Acts are known 
as General Acts. For example, an Act that is made to apply to 
all Counties would be a General Act. The local communities 
need take no initiative in the matter. When the Act has been 
passed through Parliament, it adds to the powers of all agendas 
that fall in the category mentioned in the Act. 

Powers of local government are derived, in the second place, 
from what are known as Adoptive Acts. These Acts are similar 
to General Acts in that they are applicable to one or more classes 
of local agencies. They differ from General Acts, however, in 
that they confer power in a given case only when a local agency 
falling within a class to which an Adoptive Act is applicable 
complies with whatever procedure is specified as requisite for 
the "adoption" of the Act. This procedure varies in its details 
in different Adoptive Acts. In all cases, notice must be given 
through announcements in local newspapers. After that, mere 
adoption by a Council may be sufficient, or approval of a central 
authority may be necessary as well, or, again, in the case of 
Parishes, ratification by a special majority of the voters may be 
required. 

A third source of power for local government is to be found 
in Local Acts. These Acts differ from General Acts in that 
they apply only to such agency as takes the initiative and is suc- 
cessful in securing the passage of a Private Bill, in accordance 
with the requisite procedure, through Parliament. If the Bill 
becomes law, the local agency that has sponsored the Bill re- 
ceives additional legal power. 

Local government in England acquired in the nineteenth 
century a certain amount of power through what are known as 
Clauses Acts. These Acts included in their provisions groups of 
"model" clauses. Such a clause was formulated on the basis of 
experience, which was an indication that the clause had tended 
to recur in Local Acts. Clauses Acts containing ,these model 
clauses were, thus, a variety of General Act. They were also a 
variation on Adoptive Acts, for they could become the source 
of power for local government, if a local agency cared to pro- 
mote a Local Act incorporating the model clauses. In the 



296 ENGLISH LOCAL GOVERNMENT 

course of Private Bill procedure, discussion of these clauses was 
dispensed with. 

Finally, local government may secure power through Pro- 
visional Order Confirmation Acts. Several Acts of Parliament 
have authorized Ministers conditionally to grant powers on 
various subjects to local agencies. In practice, the local agency 
petitions the Minister for an Order granting the power desired 5 
and if a given procedure is followed, which is intended to be 
like that of a Private Bill, and if the Minister consents, the 
Order is issued. However, the Order does not result in the im- 
mediate acquisition of power. The Order must be confirmed 
by Parliament. Along with other such Orders, it is included 
in a Provisional Order Confirmation Bill, which, when it has 
passed through the several stages of parliamentary procedure, 
becomes law and gives legal validity to the power provisionally 
conferred by the Order. 

By virtue of various statutory enactments, local government 
in England is, in actual fact, possessed of a considerable amount 
of power. Indeed, the tendency, it would seem, is for as much 
power to be devolved upon local government as it can possibly 
be expected profitably to exercise. This tendency is in manifest 
accord with a well established tradition in England for local 
self-government. It must, however, be viewed in connection 
with another tendency, the modern tendency for the public 
as a whole more and more to be regarded as concerned in gov- 
ernmental activities as a whole and, hence, in the part played 
by local agencies in governmental activities. This second tend- 
ency manifests itself through control on the part of the central 
government over local government. Such control, which must 
not be thought of as fundamentally detrimental in practice to 
local self-government, takes several forms. 

The fact that local agencies may not exercise any power not 
delegated to them by statute constitutes, in itself, a kind of con- 
trol over local government. This is regularly referred to in 
the United States as legislative control; and it is, in fact, the 
only kind of control, generally speaking, that exists in this 
country. Such control, it may be readily seen, tends to be, 
because of the concept of ultra vires, the same as judicial con- 



THE POWERS OF LOCAL GOVERNMENT 297 

trol. There is, however, an important respect in which control 
may be thought of as exercised by the judiciary, in addition to 
the cases in which attempted action on the part of local agencies 
is objected to on the grounds that it exceeds the authority of 
the agency involved. There may be objection to failure on the 
part of a local agency to exercise power that it undoubtedly 
possesses. This involves division of the powers of local gov- 
ernment into 'permissive powers and mandatory powers. With 
respect to the first kind of power, as the epithet indicates, local 
agencies may or may not act ; but, if they do act, the action must 
not be ultra vires. On the other hand, mandatory powers must, 
from the nature of the case, be exercised 5 and, in case of 
omission, the judiciary may be appealed to, in order for 
action to be obtained. Moreover, some powers are mandatory 
in the sense that statutory enactments provide that failure on 
the part of certain local agencies to perform certain duties shall 
be punished by fine. It has been well said that mandatory 
powers granted in General Acts play a large part in bringing 
about such uniformity as there is in local government 5 whereas 
diversity results from permissive powers in such Acts and from 
special powers granted in Local Acts. 1 

When central control over local government in England is 
mentioned, the reference is not usually to legislative and ju- 
dicial control. It is rather to what may be called administrative 
control. 

The requirement that by-laws passed by a local Council must 
be approved by a central agency is a simple example of control 
of an administrative kind. Though refusal of such approval 
in a given case may be based on the view that the by-law in- 
volved is ultra <vires y in which case disallowance may be thought 
of as merely anticipating future judicial action, nevertheless, 
such refusal may be based wholly on grounds of policy. This 
is control in a definite sense. The Council is to be thought of as 
acting within the sphere of its authority and the central agency 
as considering the action to be unwise from the point of view 
of the country as a whole. 

1 Cf. Herman Finer, English Local Government (New York, 1934), 
p. 175. 



298 ENGLISH LOCAL GOVERNMENT 

In practice, by-laws fall into two classes. The first class con- 
sists of by-laws passed by a Council in virtue of power granted 
through certain statutes to pass by-laws "for the good rule and 
government" of the community. Such by-laws deal with a great 
variety of subjects. They do not require the positive approval 
of the central government, but they must be forwarded to the 
Secretary of State for Home Affairs, who may, within a period 
of forty days, disallow them. A second class of by-laws is com- 
posed of those authorized by Acts dealing with the specific sub- 
ject of Public Health. By-laws of this kind do not become 
effective until they have been approved by the Ministry of 
Health. Control with respect to both these classes of by-laws 
possesses the advantage of making available to a community 
through the central government the long, varied, and rich ex- 
perience of other communities. Indeed, a regular practice con- 
sists of the formulation of model by-laws by the central govern- 
ment and of their adoption by local governments. This prac- 
tice is a guaranty to a local agency that the by-law meets with 
the approval of the central government and that it is as unlikely 
as experience can make it to encounter difficulty with the judi- 
ciary." * 

Various other means exist by which administrative, control of 
the central government over local government may be, and is, 
exercised. Some of the more typical ones are naturally con- 
nected with finance. Thus, for example, all local accounts must, 
with a few exceptions, be audited by the central government. 
Again, unless a locality secures special power directly from Par- 
liament, all local loans must be authorized by the central gov- 
ernment. Another example is the control implicit in the making 
or the withholding of grants-in-aid. In such cases, minimum 
standards of service are stipulated; and inspection is naturally 
involved. Thus, inspection may be listed as another means of 
control. The matter of Police is an important example of the 
respect in which grants-in-aid coupled with inspection operate. 
Still other kinds of control include the making of enquiries, the 
keeping of statistics, the offering of advice, and so on. 

It has become customary in the United States, in connection 
with local government, to contrast the typical legislative control 



THE POWERS OF LOCAL GOVERNMENT 299 

in this country with the administrative control that is prevalent 
in England and in Europe in general. Such a contrast is usually 
unfavourable to the American situation. Legislative control is 
criticized as being rigid; whereas administrative control is con- 
ceived to possess the virtue of flexibility. Control over local 
loans is often cited as an example. In such a case, legislative 
control must take the form of a statutory limit on the size of 
the indebtedness that a locality may incur. When this limit 
is reached, no further loan is possible until the law is changed. 
This is true even though the borrowing undertaken before the 
limit is reached may be of very doubtful wisdom and the bor- 
rowing desired after the limit is reached may be altogether com- 
mendable. Under administrative control, each loan proposed by 
a locality is considered on its own merits. The administrative 
branch of the central government formulates an opinion in the 
matter that is based on the interests of the country as a whole 
and on the accumulated experience of the central government 
with respect to all kinds of loans. If approval of a proposed 
loan is withheld, the locality may feel some confidence that its 
undertaking would have been unwise. 

One aspect of the administrative control of local government 
in England ought to be remembered. That is the matter of 
its connection with the phenomenon of ministerial responsibility. 
The heads of the Departments of the central government that 
exercise control in respect of local government are, after all, 
Ministers. As such, they are responsible to the House of Com- 
mons. A vigilant Opposition would presumably seize with 
avidity upon any abuse in the matter of control over the activi- 
ties of local agencies. Thus, control is exercised in conditions 
of political democracy. Such control could probably not be 
profitably extended very far in a democratic country where min- 
isterial responsibility does not exist. This is manifestly an im- 
portant consideration in connection with control in the several 
States in the United States. 

The whole.question of central control over local agencies is, it 
may easily be seen, connected with the matters of decentraliza- 
tion and of local self-government. Any description of such con- 
trol in England risks giving the impression of a highly central- 



3OO ENGLISH LOCAL GOVERNMENT 

ized system. It ought rather to serve to emphasize the fact that 
decentralization and local self-government are relative matters, 
that they are matters not so much of theory as of practice, and 
that practice is in large measure determined by tradition. The 
fact is that local government in England is based solidly on 
the voters in their capacity as members of the several com- 
munities, and central government on the voters in their capacity 
as members of the general community. Much that is called 
control may in reality be considered cooperation. Moreover, 
beyond that, the localities are possessed of a well marked rela- 
tive autonomy. The principal local governmental agencies are 
chosen by the voters. (The local community is almost wholly 
unrestricted in determining the internal structure of its govern- 
ment. It possesses wide powers, many of which it may or may 
not exercise as it sees fit. In all casss, it can remain relatively 
free from interference so long as its accomplishments do not 
fall below a certain minimum. On the balance, England re- 
mains far excellence the country of local self-government. 



ACKNOWLEDGEMENTS 

My especial thanks are due to Professor Harold J. Laski, 
of the London School of Economics and Political Science, for 
his continuous and unfailing courtesy, encouragement, and help- 
fulness. In particular, in the present instance, he gave much 
of his valuable time to reading manuscript and to making ex- 
ceedingly valuable suggestions. Professor C. Perry Patterson, 
of the University of Texas, was kind enough to let me see in 
manuscript his scholarly work on The Administration of Justice 
in Great Britain (Austin, 1936). My friend and colleague, 
Professor Raymond Uhl, of the Bureau of Public Administra- 
tion in the University of Virginia, has rendered me assistance 
in the preparation of the present volume, as ne has in countless 
other matters, for which I shall never be able sufficiently to 
thank him. Without the benefits of the intelligence, patience, 
and good nature of Mrs. R. E. Hall, Jr., and Miss Ruth Ritchie, 
of the Institute for Research in the Social Sciences in the Uni- 
versity of Virginia, I should never have completed this book. 



BIBLIOGRAPHICAL NOTE 

The undergraduate student of English Government may 
easily compile a list of many more worthwhile works than he 
will normally be able to consult. Such work's may be conveni- 
ently placed in one of three categories. 

I. PRIMARY MATERIALS 

The student who undertakes to put first things first will con- 
sult as many primary sources of knowledge as possible concern- 
ing English Government. In general, such sources take the 
form of documentary material. There is a great wealth of it. 
Such collections of this kind of material as are easily accessible 
have usually been prepared for students of history. In this 
connection, so far as American works are concerned, reference 
may be made to 

Adams, G. B., and Stephens, H. M., Select Documents of Eng- 
lish Constitutional History (New York, 1920); and 
Violette, E. M., English Constitutional Documents Since 1832 

(New York, 1936). 

Well known collections of the same sort in England include 
Gardiner, S. R., Constitutional Documents of the Puritan Revo- 

lution (Oxford, 1899) 
Lodge, E. C., and Thornton, G. A., English Constitutional 

Documents (Cambridge, 1935) 

Prother, G. W., Select Statutes and Constitutional Documents 
Illustrative of the Reigns of Elizabeth and James I (Ox- 
ford, 1898) 

Robertson, C. G., Select Statutes, Cases y and Documents (Lon- 
don, 1927) 

Stubbs, W., Select Charters and Other Illustrations of English 
Constitutional History (gth ed., Oxford, 1913). 

303 



3O4 BIBLIOGRAPHICAL NOTE 

For students of political science, a certain number of docu- 
mentsi though combined with "readings," may be found in 
Hill, N. L., and Stoke, H. W., The Background of European 

Governments (New York, 1935), Part I. 
From the legal point of view, several good collections of cases 
on Constitutional Law are available. Reference may be made, 
for example, to 
Keir, D. L., and Lawson, F. H., Cases in Constitutional Law 

(Oxford, 1933)- 

Official documents are published 'in England in bewildering 
profusion. The student who has occasion to set out into the 
labyrinth will do well to consult such works as 
Carr, C. T., Delegated Legislation (Cambridge, 1921) j and 
Lees-Smith, H. B., Guide to Parliamentary and Official Payers 

(Oxford, 1924). 

Of easily accessible (from His Majesty's Stationery Office) 
particular documents which serious students ought to consult, 
the following somewhat random list contains a few important 
examples: 

Standing Orders of the House of Commons (frequent editions) 
Report of the Conference on the Reform of the Second Cham- 
ber (Cmd. 9038, 1918) 
Report of the Machinery of Government Committee (Cmd. 

9230, 1918) 

Report on Indian Constitutional Reforms (Cmd. 9109, 1918) 
Imperial Conference, 1926* Summary of Proceedings (Cmd. 

2768, 1926) 
Imperial Conference, 1930. Summary of Proceedings (Cmd. 

3717, 1930) 
Report of the Royal Commission on the Civil Service (Cmd. 

3909, 1931) 
Special Report from the Select Committee on Procedure on 

Public Business (1931) 
Report of the Committee on Ministers' Powers (Cmd. 4060, 

1932). 

Much less accessible, but of inestimable value, is 
Reports of the Royal Commission on Local Goverment (Cmd. 
2506, 1925, Cmd. 3213, 1928, and Cmd. 3436, 1929) with 
many volumes of evidence, etc. 



BIBLIOGRAPHICAL NOTE 305 

Of somewhat different kind, the following pamphlets are 

examples of documents well worth reading: 

For Socialism and Peace (Published by the Labour Party, Lon- 
don, 1934); and 

The Liberal Way (Published by the National Liberal Federa- 
tion, London, 1934). 

2. BOOKS THAT MAY BE CONSIDERED CLASSICS 

Opinions will differ as to what books can claim a place in 
this category j but a good case can be made for reading such 
books in preference to many that are more recent in date. In 
this country, a place of honour should be given to 
Lowell, A. L., The Government of England (New ed., 2 vols., 
New York, 1912). 

In England, first mention ought probably to go to Walter 
Bagehot's The English Constitution. A convenient edition, 
with a preface by the late Lord Balfour, was published by the 
Oxford Press in 1928. At the first opportunity, students should 
read, in addition to the above, the two following books: 
Dicey, A. V., Introduction to the Study of the Law of the Con- 
stitution (8th ed., London, 191 5) j and 
Low, S., The Governance of England (Revised ed., London, 
1914). 

3. SECONDARY SOURCES 

Important books that fall in this category are too numerous 
to list with any completeness. Special emphasis may be given 
to various books on English Constitutional History. That of 
the late G. B. Adams is perhaps the most satisfactory for Amer- 
ican students. Of English authors of such books, some of which 
can probably claim to be classics, mention may be made of the 
names of Hallam, Maitland, May, Medley, Stubbs, and Tas- 
well-Langmead. Similarly, several works on English Legal 
History may be recommended, especially, that of Pollock and 
Maitland and that of Holdsworth. 

Several books dealing with English Government in general 
contain a fc convenient wealth of detail. An American volume of 
this sort is 



306 BIBLIOGRAPHICAL NOTE 

Ogg, F. A., English Government and Politics (Revised ed., 

New York, 1936). 

A small English volume of ready reference is 
Clarke, J. J., Outlines of Central Government (7th ed., Lon- 
don, 1935). 

From a more legal point of view, considerable detail of great 
accuracy is contained in 

Wade, E. C. S., and Phillips, C. G., Constitutional Law (Re- 
vised ed., London, 1933). 

The /books contained in the following list, which is in no 
sense exhaustive, are all worth consulting: 
Allen, C. K., Bureaucracy Triumphant (Oxford, 1931) 
Amos, M., The English Constitution (London, 1930) 
Anson, W. R., Law and Custom of the Constitution (jth and 

4th ed., 2 vols., 1922 and 1935) 
Campion, G. F. M., An Introduction to the Procedure of the 

House of Commons (London, 1929) 
Carter, A. T., History of English Courts (jth ed., London, 

1927) 

Elliott* W. Y., The New British Empire (New York, 1932) 
Ensor, R. C. K., Courts and Judges (Oxford, 1933) 
Finer, H., English Local Government (New York, 1934) 
Finer, H., The Theory and Practice of Modern Government 

(2 vols., London, 1932) 
Hasluck, E. L., Local Government in England (Cambridge, 

1936) 

Hearnshaw, F. J. C., Conservatism in England (London, 1933) 
Hewart, The New Despotism (London, 1929) 
Hills, J. W., The Finance of Government (London, 1925) 
Ilbert, C., Parliament (Revised ed., London, 1920) 
Jennings, W. I., Cabinet Government (Cambridge, 1936) 
Jennings, W. L, Parliamentary Reform (London, 1934) 
Jennings, W. L, Principles of Local Government Law (Lon- 
don, 1931) 
Jennings, W. I., The Law and the Constitution (London, 

1933) 
Keith, A. B., The Governments of the British Em'pire (New 

York, 1935) 



BIBLIOGRAPHICAL NOTE 

Laski, H. J., The Crisis and the Constitution (London, 1932) 
MacDonagh, M., The English King (London, 1929) 
MacDonagh, M., The Pageant of Parliament (2 vols., Lon- 
don, 1921) 

Maud, J. P. R., Local Government (London, 1932) 
Morrison, H., and Abbott, W. S., Parliament: What it is and 

How it Works (London, 1934) 
Muir, J. R., How Britain is Governed (Revised ed., London, 

1933) 
Mustoe, N. E., The Law and Organization of the British Civil 

Service (London, 1932) 
Patterson, C. P., The Administration of Justice in Great Britain 

(Austin, 1936) 

Pike, E. R., Political Parties and Policies (London, 1934) 
Pollard, A. F., The Evolution of Parliament (2nd ed.. London, 

1926) 

Port, F. J., Administrative Law (London, 1929) 
Robson, W. A., Justice and Administrative Law (London, 

1928) 

Snell, H., Daily Life in Parliament (London, 1930) 
Whitehall Series (London, 1925 to date) 
Young, E. H. (Lord Kennet), The System of National Finance 

(3rd ed., London, 1936). 

ARTICLES IN LEARNED REVIEWS IN THIS COUNTRY AND ENGLAND 
EXIST, OF COURSE, IN GREAT PROFUSION. 



INDEX 



Abdication, 97 

"Abhorsers," 36 

Accounting, 76 

Act of Settlement of 1701, 67, 96, 

98, 126, 156, 236 
Adams, G. B., 4n., 305 
Address of Parliament, 236 
Adjournment, 164, 178 
Administrative Counties, 255, 256, 

257 

Administrative Courts, 246, 248 
Administrative Justice, 2466. 
Administrative Law, 246, 249 
Administrative Regulations, 65, 105 
Administrative Reorganization, 1 1 8, 

119 
Admiralty, 116-117, 238 

Civil Lord of the, 117 
Adoptive Acts, 295 
Agency, 293 

Agricultural Holdings Act, 238 
Agricultural Labourers, 25, 26 
Air Force, 101, 121, 191 
Aldermen, 260, 261, 262, 264 
Aliens, 1 1, 13, 1 6, 17, 29 
Alternative Vote, 159 
Amendments, 178, 179, 180, 182, 

183. 

Analytical School of Jurisprudence, 



Anarchism, 287 

Anarchists, 286 

Angles, 9, 1 1 

Anne (Queen), 38, 96, 173 

Annual Value (of Land), 23, 25, 

28, 276, 277 
Appointment and Removal, 102- 

103, 104, 128, 266, 282, 283, 

284 



Appropriation Act,, 190, 197 

Aragon, 85 

Archbishops, 102, 152 

Areas of Chartered Companies, 219 

Areas of Local Government, 2541!. 

Aristocracy, 45 

Aristotle, 7 

Armaments, 44 

Army, 34, 35, 42, 72, 101-102, 

116, 121, 165, 191 
Officers of the, 156 
Asquith, H. H., 216, 217 
Assistant Post Master General, 1 1 5 
Assize Circuits, 240, 241 
Assize Courts, 240, 242, 243, 245, 

246 

Attorney General, 114 
Audit, 76 
Austin, John, 67 
Australia, 219, 221, 223 
Authority, 285, 294 

Bagehot, Walter, 108, 12 

305 

Bail, 244 

Balfour (Lord), 305 
Balloting, 163 

Bank of England, 44, 190, 198 
Bankruptcy, 238 
Barons, 79, 85, 87, 153, 233 
Barristers, 235, 236, 237 
Bentham, J., 134 
Bicameralism, 84, 85, 86, 150, 208, 

212, ,213, 217, 221, 232, 26O 

Big Business, 45 
Bill of Rights, 64, 65, 88, 209 
Bills, 173-174, 178, 180, 213, 218 
Financial, 180, 187, 213, 214, 
215 



39 



3io 



INDEX 



Bills, -Government, 174, 177 

Private, 174, 180, 183-185, 295, 
296 

Private Members', 174, 175 

Public, 174, 177, 179, 1 80, 

181, 183, 184, 214 
Birmingham, 46, 47 
Birth-rate, II 
Bishops, 1 02, 151, 152 
Blackstone, 97 
"Block" Grants, 279 
Board 

Admiralty, 117 

of Agriculture, 117 

of Education, 117, 290 

of Trade, 1 1 7 
Borough, 10, 23, 24, 25, 26, 27, 

84, 85, 157, 158, 161, i63n., 

208, 243, 245, 254, 255, 256, 

260, 263, 264, 265, 266, 267, 

277, 288, 289 
Borough Councils, 260, 261, 262, 

263, 266 
Borrowing, 196 
Bourgeoisie, 25 
Bridges, 290 ' 
British Commonwealth of Nations, 

1 6, 96, 1 06, 206, 224, 225 
British Empire, 8, n, 96, 106, 

116, 121, 206, 208, 219, 222, 

224, 225, 226, 232 
British India, 16, 226, 228 
British Isles, 8, 206, 225 
British North American Act, 221, 

223 

Broadcasting, 49, 162 
Bryce (Lord), 217 
Budget, 1 8 8, 189, 190, 192, 194, 

195, 204 v 

Budget Speech, 196 
Bureaucracy, 147, 148 
Burgesses, 84, 85 
Burke, E., 30, 31, 39, 134, 160 
By-elections, 155 ' 
By-laws, 273-274, 297 



Cabinet, 68, 88, 109, ii2ff., 
115, 117, 119, 120, 121, 122, 
123, 125, 126, 127, 128, 129, 
130, 131, 132, 137, 145, 148, 
167, 168, 169, 179, 191 

Cabinet Council, 120 

Cabinet Government, 88, 123, 
124 t 

Cabinet Ministers, 113, 115 

Cabinet Minutes, 122, 123 

Cabinet Secretariat, 122, 123 

Cabinet System, 39, 265 

Cambridge, 14 

Cambridge University, 142, 15711. 

Campaign Expenditures, 162, lo3n. 

Canada, 219, 220, 221, 222, 223 

Candidates, 47 

Canterbury, 85 

Archbishop of, 152 

Canvassing, 162 

Capitalism, 43 

Capitalist Collectivism, 43 

Carlyle, T., 134 

Caucus, 47 

Cavaliers, 36 

Celts, 1 1 

Central Government, 71, 73, 74, 
77, 81, 83, 86, 9ifL, 132, 208, 
221, 253, 254, 263, 265, 268, 
270, 272, 273, 274, 275, 277, 
278, 279, 280, 281, 282, 285, 
288, 290, 292, 295, 296, 297, 
298, 299, 300 

Central Law* Courts, 230, 236, 
237, 242, 276 

Ceylon, 142 

Chairman of Quarter Sessions, 245 

Chairman of Ways and Means, 1 69, 
179, 182 

Chamberlain, Joseph, 46 

Chamberlain, Neville, 113, 114 

Chancellor, 8 1, 82 

Chancellor of the Exchequer, no, 

112, 113, 117, 122, 145, 190, 

191, 195, 196, 197, 216 



INDEX 



Chancery Division (High Court), 

234, 241 

Channel Islands, 219, 231 
Charing Cross, 258 
Charity Commissioner, 115 
Charle3 I, 64, 1 20 
Charles II, 36, 120 
"Checks and Balances," 125 
Chesterton, G. K., 5 
Chiao, W. H., 2o6n. 
Chief Constable, 288 
Chiltern Hundreds, 155, 156 
Church, 34, 35, 42, 72, 101 

of England, 98, 102, 152, 156 

of Rome, 98, 156 

of Scotland, 102, 156 
Church Commissioner, 115 
Church Courts, 234 
Cities, 10, 254, 256, 266n., 267 
Citizenship, 138"., 155, 262 
City of London, 258, 259n., 

266n., 288 
City State, 253 
Civil Cases, 80, 230, 231, 237, 

238, 239, 242 
Civil Courts, 230, 231, 237, 

241 

Civil Establishments, 137 
Civil Jury, 237 
Civil List, 99, 107 
Civil Servants, 136, 137, 143, 144, 
145, 146, 147, 148 

Administrative Class of, 142- 

H3 

Associations of, 138 
Classes of, 138, 139, 140, 142 
Clerical Class of, 140-141 
Executive Class of, 141-142 
Promotion of, 140, 141 
Reorganization Classes of, 139, 

140, 141 
Typist and Shorthand Typist 

Class of, 139 
Writing Assistant Class of, 139- 

140, 141 



Civil Service, 94, 103, !32fF., 156, 
191, 200, 268, 269, 270, 272, 

. 2 . 75 ' 282 . 
Civil Service Commission, 135, 

136, 137 

Civil Service Reform, I34ff. 
Clauses Acts, 295 
Clergy, 45, 85 
Clerk 

County, 27, 264 

of the Crown, 180 

of the House of Commons, 167, 
168, 176, 177, 181 

of Parliaments, 168, 180 

of Quarter Sessions, 245 

Town, 27, 264 
Closure, 181, 182-183 

by "Compartments," 182 
Coke, Sir Edward*, 229, 241 
Collective Responsibility, 38, I2O, 

131 

Colonial Laws Validity Act, 223 
Colonial Policy, 220 
Colonial Slavery, 39 
Colonies, 16 

Crown, 219, 225-226 
Command Papers, 202 
Commissioners, 1 1 7 
Commissions of the Peace, 243 
Committee for Foreign Affairs, 1 20 
Committee of Imperial Defence, 

121 

Committee of Intelligence, 120 
Committee on Ministers' Powers, 

249, 250 
Committee of Public Accounts, 198, 

199 
Committee of Scientific and Civil 

Research, 122 

Committee on Scottish Affairs, 170 
Committee of Selection, 171, 185 
Committee of Supply, 169, 191, 

^ I94> 195, I97> 205 
Committee on Ways and Means, 
191, 196, 197 



312 



INDEX 



Committee of the Whole House, 

169-170, 171, 178, 179, 181, 

182, 191 

Committees, 124, 126, '127, 168, 
169-171 

Advisory, 121 

Assessment, 276 

Cabinet, 121, 123 

Conference, 126 

Department, 202 

Education, 264 

Estimates, 194 

Finance, 264, 276 

Local Council, 264-265, 267, 
268, 272, 273, 274, 275, 
280, 282 

Private Bill, 170, 185 

Select, 170, 2O, 228 

Sessional, 170, 199 

Standing, 126, 170, 178, 179, 
181, 182, i93-!94 

Standing Joint, 288 

Statutory, 264 

Watch, 264, 288 
Committee Stage, 176, 178, 179, 

180, 181, 183, 184, 185 
Common Good, 285 
Common Jury, 239 
Common Law, 15, 60, 66, 67, 81, 

82, 95, 96, 100, 130, 238, 239, 

241-242, 244, 247, 249, 292 
Common Law Courts, 77, 78, 79, 

8o> 82, 130, 229, 234, 241, 

247 

Common Pleas, 80 
Common Pleas Division (High 

Court), 234 

Competitive Examinations, 134, 
135, 136, 140, 141, 142, 144- 
145, 146, 270, 271 
Comptroller and Auditor General, 

198 

Comptroller of Establishments, 138 
Conservatism, 32, 33 
Conservative Conference, 48 



Conservative National Union, 48 
Conservatives, 25, 33, 37, 39, 40, 

41, 42, 43, 44, 45, 47, 48, 159 
Consolidated Fund, 190, 195, 197, 

198 
Constituencies, 26, 27, 46, 156- 

157, 166, 170, 203, 262 
Constitutional Limitations, 209, 

2IO, 212 

Contract, 87 

Breaches of, 231 

Control of the Executive, 127, 
130, 172, I99ff., 213, 215-216, 
272 (Local), 288ff. 
Conventions of the Constitution, 
60, 68, 69, 70, 86, 96, 100, 
104, 105", 109, no, 112, 115, 
125, 143, 1^5, 162, 213, 236 
Cooperatives, 44 
Copyhold, 24, 25 
Coronation, 97, gSn. 
Coronation Oath, 97, 98n. 
Coroner's Inquest, 246 
Corrupt Practices Acts, 29, 162 
Cost of Living Bonus, 136-137, 

140 

Council of India, 227 
Countersignature, 129-130 
County, 9, 10, 23, 24, 25, 26, 27, 
8 4> 85, 157, 161, l63n., 208, 
243, 244, 245, 254, 255, 256, 
257, 259, 263, 264, 265, 267, 
277, 279, 288, 289, 290, 295 
County Borough, 254, 255, 256, 

259, 279, 290 

County Borough Councils, 259 
County Chairman, 260, 267 
County Councils, 259, 260, 261, 

262 

County Court, 2^, 237-239, 242 
County Court Circuits, 237 
County Court Districts, 237 
County Districts, 257 
County of London, .257, 258, 250 
Court of Admi/alty, 234 



INDEX 



Court of Aldermen, 25911. 

Court of Appeal, 233, 235, 236, 

*37> *39> H* 
Court of Chancery, 81, 82, 88, 

229, 234, 241 
Court of Claims, 64 
Court of Common Council, 
Court of Common Hall, 
Court of Common Pleas, 78, 79, 80 
Court of Criminal Appeal, 246 
Court for Divorce and Matrimonial 

Cases, 234 

Court of the Exchequer, 78, 79 
Court of the King's Bench, 78, 79, 

80 

Court of Probate, 234 
Covenanters, 3 7 
Crimean War, 220 
Crimes, 230 
Criminal Appeals, 104 
Criminal Cases, 80, 230, 231, 237, 

243, 244, 245, 246 
Criminal Courts, 230, 231, 241, 

245 

Criticism of Executive Policy, 129, 
149, 192, 193, 194, 200, 202, 
203, 204, 216, 281 

Cromwellian Period, 241 

Crown, 15, 16, 65, 95, 96, 97, 98, 
99, 100, 106, 126, 132, 133, 
I37> I5i> I55> 156* 161, 164, 
165, 166, 168, 190, 195, 197, 
198, 204, 213, 214, 215, 217, 
219, 224, 231, 243, 266n., 267 

Curia Regis, 75, 77, 78, 79, 80, 
81, 82, 83, 115, 154, 172, 229, 
232 

Custom, 69 

Customs and Excise Departments, 
13* 

Damages, 231 

Danes, II 

Danish Invasion, 72 

Death-rate, II 



Debate, 171, 177, 178, 180, 181, 

182, 183, 192, 201, 202, 203, 

204, 217 

Decentralization, 299, 300 
Declaration of Intention, 16 
Defence Services, 116, 132, 191 
Delegated Legislation, 105, 148, 249 
Delhi, 227 
Demise, 97 
Democracy 

Economic, 37 

Political, 21, 22, 30, 37, 86, 87, 
89, 107, 109, 124, 148, 199, 

2O9, 2IO, 211, 212, 268, 
273-274, 299 

Dependencies, 219 

Deputy Minister of Fisheries, 115 

Deputy Speaker, 169 

Derating, 279 

Devolution, 206, 207, 208 

Dicey, A. V., 70, 100, 247, 249 

Differentiation, 74, 75, 76, 77, 78, 

81, 83, 86, 93, 95, 102, 104, 

116, 119, 123, 172, 247, 248, 

270, 281 
Diplomatic and Consular Service, 

142 

Disputed Elections, 163-164 
Disraeli, B., 25, 39, 168 
Dissolution, 97, 104, 128, 129, 

154, 155, 161, 164, 165, 200, 

216, 268 
"Division," 183 
"Division Lobbies," 183 
Division of Probate, Divorce, and 
Admiralty (High Court), 234-235 
Divisional Courts, 240, 242' 
Dominions, 96, 98n., 206, 2i9ff., 

226, 231, 232 
Dominions Office, 219 
Dominion Status, 9, 226 
Dual Citizenship, 16 
Duchy of Cornwall, 99n. 
Duchy of Lancaster, 99 

Chancellor of the, 114 



INDBX 



"Due Process of Law," 210 
Duke of Gloucester, 97 
Duke of Kent, 97 
Dummy Bills, 176, 177, 202 
Durham, Bishop of, 152 
Durham (Lord), 220, 221 



East India Company, 1 34, 1 3 5, 227 
Ecclesiastical Courts, 232 
Economic Advisory Council, 121, 

122 

Economic Self-sufficiency, 45 

Education, 39, 270, 279, 283, 284, 
287, 289, 290 

Edward I, 78, 80, 85 

Edward II, 97, 119 

Edward III, 1 86 

Edward VII, 103, 216 

Edward VIII, 43, 97, 106 

Eighteenth Century, 9, 38, 88, 
no, 117, 120, 126, 134, 152, 
227 . / 

Election Day, 161, 162 

Elections^ 

Local, 26, 47, 161, 262, 263 
National, 26, 27, 46, 104, 128, 
155, 156!?., 161, 262, 263 

Electoral Campaign, 162 

Electoral Reform, 42, 159 

Electorate, 128, 161, 217 
(Local), 262-263 

Elements of the English Constitu- 
tion, 60, 62, 63 ' 

Eleventh Century, 71, 72, 78 

Elizabeth (Queen), 116, 120 

Ellesmere (Lord), 241 

Enacting Clause, 173 

England, 8, 9, 10, u, 12, 22, 45, 
71, 72, 154, 206, 207, 232, 
237, 240 

English Channel, 8, 25, 247 

English Constitution, 53ff., 99, 

124, 128, 131, 219 
"Bible" of, 64 



English Constitutional History, 4, 

6> 7> 3> 33> 55> 63, 718., 123, 

124, 133, 305 
English Legal History, 305 
Entente cordide^ 103 
Equality , 

Economic, 35 

Political, 22 

of States, 225 

Equity, 8 1, 82, 88, 238, 241-242 
Established Church, 12 
Establishment Divisions, 138 
Establishment Officers, 138 
Establishments Department, 138 
Estates, 85, 88 
Estimates, 189, 190, 191, 192, 

*93> '94> '95> 196, i97> 204, 

275, 276 

Europe, 8, 15, 32, 80, 85, 94, 299 
Evolution, 73, 74, 77, 83, 86, 87, 

117, 247, 270 
Examiners of Private Bill Petitions, 

184 

Exchequer, 76, 77, 78, 79, 117 
Exchequer Division (High Court), 

234 

Exclusion Bill, 36 
Executive Branch of Government, 

77, 93ff., 118, 188, 283, 284, 

299 

Formal, 936*., 221, 265, 266 
Local, 265 
Political, 94, 105, 1098"., 145, 

265, 267, 273, 280, 282, 288 
Real, 94, 103, loqff., 130, 

I32fL, 222, 265, 266 

Routine, 116, 1326*., 265, 268, 

269, 273, 274, 288 -. 
Executive Departments, i;o, 113, 
116, 117, 119, 122, 123, 132, 

*33> '35> 136, 138, 140, H3> 
145, 148, 177, 184, 198, 199, 
270, 278, 299 

Executive Functions (Local), 281- 
282 



INDEX 



315 



Executive Powers Strictly Speaking, 

10 iff. 
Executive Unity, no, 123, 267, 

268 
Expenditure, 186, 187, 188, 189, 

190, 191, 192, 196, 199, 204, 

205, 227, 275, 276, 288 



France, 34, 69, 88, 94, 126, 179, 
247, 248, 273 

Constitution of, 126 
Franchise 

"Forty Shilling Freeholder," 23, 



Local, 21, 26 

National, 21, 23, 24, 25, 26, 28 
Freedom of Debate, 182 
Freedom of the Press, 38 
Freehold, 23, 24, 261 
Free Trade, 38, 44 
Function of Government, 41, 61, 
7> 68, 73, 74, 75, 76, 77, 
86, 93, 95, 99, 100, 101, 
118, 119, 187, 253, 256, 
270, 283, 285, 286, 287, 289 
Problem of, 54 



Fabian Society, 40 

Factory Trade Boards, 249 

Factory Workers, 25, 26 

Federalism, 211, 212, 221, 225, 228 

Feudal Dues, 76 

Feudalism, 75, 07 

Feudal System, 73 

Fifteenth Century, 23, 81, 82, 88, 

119, 241 

Fifth Century, 9, 71 
Finance Act, 190, 196, 197, 216 
Financial Secretary of the Ad- Gaol Delivery, 246 

. miralty, 117 
Financial Secretary of the Treasury, 

114, 117 

Financial Secretary for War, 114 
Finer, H., 297n. 
Fire Protection, 288, 289 
First Commissioner of Works, 114 
First Lord of the Admiralty, 114, 

117 
First Lord of the Treasury, ill, 



First Reading, 176, 177, 183, 184, 

202 

Fiscal Year, 190, 194 
Flag, 1 06 
"Flapper" Act, 28 
Fleet Street f 83 
Foreign Policy, 44, 103 
Foreign Relations, 103-197, 116, 

218, 220, 226, 283 
Form and Substance, 54, 55, 56, 

61, 174 

Fountain of Justice, 103 
Fourteenth Century, 81, 83, 86, 

116, 150, 234 



General Acts, 295, 297 
General Interest, 209, 213 
General Welfare, 31, 32, 33, 34, 

35, 42, 285, 286, 292 
Gentleman Usher of the Black 

Rod, 1 68, 1 80, 202 
Geographic Unity, 14 
Geography, 7ff. 
George I, 38, no, 120 
George II, 38 
George III, 39 
George IV, 39 
George V, 97, 216 
George VI, 96, 98n., 173 
"Gerrymandering," 157 
Gladstone, W. E., 39, 95, 182 
Good Life, 7, 8 
"Good Rule and Government," 

298 
Government of, the Day, 32, 161, 

165, 166, 167, 169, 171, 174, 

175, 176, 182, 192, 193, 196, 

I97> I99> 200 > 20I 202 > 20 3 
204, 207, 215, 216, 217, 227, 
228 



INDEX 



Government of India Act of 1915, 

227 
Government of India Act of 1919* 

227 
Government of India Act of I935> 

228 

Grand Jury, 24411. 
Grants-in-Aid, 278, 280, 288, 298 
Great Barons, 85 
Great Council, 64, 83 
Greater London, 12, 258 
"Guillotine," 182 

Habeas Corpus Act, 64 

Haileybury School, 134-135 

Haldane (Lord), 12 in. 

Hall, Mrs. R. E., Jr.,- 301 

Hallam, H., 305 

Hanoverians, 38, 120 

Hansard, 171 

Head of the State, 94, 95, 103, 

123, 130, 282 
Heirs, 67, 96 
Henry I, 78 
Henry II, 78, 79 
Henry III, 78, 84, 116 
Henry VI, 23, 173 
Henry VIII, 102, 120 
Hereditary Peerages, i2fF. 
Hereditary Peers, 152 
Hewart (Lord), 249, 250 
High Court of Justice, 163, 233, 

234, 235, 236, 237, 238, 239, 

240, 241, 242, 243, 246 
Historic County, 255, 258, 267 
History, 54, 55, 71, 74, 75, 93, 

101, 106, 107, 109, 123, 217, 

*55 

Holdsworth, W. S., 305 

Home Office, 274 

Home Rule, 39, 206 

House of Commons, 26, 36, 38, 
4On., 61, 65, 68, 84-85, 89, 
104, in, 112, 117, 125, 
1*6, 1*7, 128, 129, 130, 



144, 145, 148, I49 15<>> 

*53> !54> *55> 156, *57> 

158* I59> 160, 161, 162, 

163, 164, 166, 167, 169, 

170, 171, I73> *74> i?5 

176, 180, 181, 182, 183, 

185, 186, 187, 188, 190, 

191, 193, 194, I95> 196, 

197, 198, 199, 200, 20 1, 

2O2, 203, 2O4, 212, 213, 

214, 215, 216, 218, 228, 

299 

Qualifications of Members of, 
155-156 

Removal of, 155 

Sittings of, 167, 171, 204 

Size of, 154 

Term of, 154 

House of Lords, 42, 65, 82, 83, 

84, 89, 112, 150, 151, 152, 

153, 154, 159, 166, 168, 

169, 171, 175, 180, 185, 

202, 212, 213, 214, 215, 

2l6, 217, 2l8, 228, 232N 

233, 237, 242, 246 

Reform of, 153, 216, 217-218 
Size of, 151-153 
Hundreds, 10 



Ilbcrt, C., 1 8 in. 

Impeachment, 130-131 

Imperial Conference, 222, 223, 

224 

Imperial Economic Conference, 222 
Imperial Federation, 225 
Imperial Preference, 45 
Imperial Relations, 45, 219!?. 
Imperial War Cabinet, 222 
Imperial War Conference, 222 
Incompatibility (Members of House 

of Commons), 156 
Incorporation, 293 
Independence of the Judiciary, 

104, 247 



INDEX 31-7 

Independent Labour Party, 40, 43 Judicial Committee. 116, 224, 231, 
India, 45, 134, 135, 136, 142, 232 

Judicial Control of Local Govern- 
ment, 296-297 

Judicial Council, 236 



219, 226, 227, 228, 231, 232 
Indian Empire, -226 
Indictment, 244, 24.6 
Individualism, 43, 118, 286, 287, Judicial Decisions, 65, 66, 67 

289, 2*90, 291 



Individual Rights, 248, 249 

Industrial Conditions, 29 

Ineligibility (Members of House of 
Commons), 156 

Information (Concerning Execu- 
tive Policy), 200, 20 1, 202, 
216, 281 

Initiative and Referendum, 274 

Inland Revenue Department, 132, 
140 

Inspection, 298 

Institutionalization, 76, 95 

Intelligence and Research Depart- 
ment, 122 

Internal Affairs, 220 

International Understanding, 5 

Ireland, 8, 9, 10, 12, 39, 153, 206, 

207 
Union with, 64, 151, 152, 153 

Irish Free State, 9, 153, 154, 219, 
221 

Irish Nationalists, 181 

isle of Man, 219, 232 

Itinerant Justices, 76, 77, 78, 79, 
80, 81, 82, 240, 245, 267 



James I, 241 

James II, 36, 37, 38, 97 

Jews, 12 

John (King), 78, 80, 87 

Judges, 66, 67, 8 1, 102, 104, 

156, 195, 210, 212, 2291!. 
Appointment of, 235, 237, 243 
In Chambers, 239, 242 f 
Tenure of, 236, 237, 243 

Judicature Act of 1873, 233, 234, 
236, 241 



Judicial Powers of the Executive, 

IOI, 103-104 
Judicial Review, 224 
Judiciary, 77, 81, 82, 95, 101, 

229ff., 258, 294, 297, 298 
Julius Caesar, 9 
Junior Lords of the Treasury, 114, 

II? 

Jury System, 80, 84, 234, 238, 

239, 244, 245, 246 
Jus SanguintSy 15, 1 6 
Jus Soli, 15, 1 6 
Justices of the Peace, 243-244, 

245, 266, 267, 288 



"Kangaroo" Closure, 182 

Keepers of the Peace, 243 

Kin g) 9) 33) 3 6 ) 3 8 ) 43) 64, 72, 
73) 74) 75> 76, 77) 7, 79) 80, 
82, 83, 84, 86, 87, 88, 93ff., 
110, in, 112, 115, n6> ii9> 

1 2O, 122, 123, 124, 126, 128, 
129, 130, 163, 165, 169, 170, 

*73) *75) *8o, 184, 186, 202, 
203, 208, 217, 221, 231, 232, 
235, 241, 247, 266, 272, 282 
King-Emperor, 226 
King-in-Council, 75, 76, 105 
King-in-Parliament, 62, 95, 105, 

172 

King's Bench Division (High 

Court), 234, 240, 242, 243, 245 
King's Council, 75, 76, 83, 84, 85, 

86, 93, 116, 119, 120, 154 
King's Court, 75, 76, 77, 78, 83, 

86, 104, 119 
King's Peace, 80, 231 
Knights, 84, 85, 266 



INDEX 



Labour Government, 122 

Labour Party, 37, 40, 41, 42, 43, 
44, 45, 46, 47, 48, H7n., 159 

Labour Party Conference, 48 

Labour Party Secretary, 48 

Labour Party Treasurer, 48 

Labour Representative Committee, 
40, 40n. 

Laissez-faire y 43 

Lancastrians, 36 

Land Tenure, 22 

Language, 14, 16, 226 

Laski, H, J., 2O7n., 301 

Law, 15, 62, 6s, 66, 87, 292, 293, 

294 

of the Constitution, 60, 68, 69, 
70, 86, 87, 100, 104, 109, 

IIO, 143, 155, 162, 212, 

213*304. 

Judge-made, 66, 67 

Law Courts, 77, 79, 81, 82, 94, 
103, 207, 208, 209, 229ff., 
246, *47, 248, 249 

Law Enforcement, 101, 124, 125 

Law Making, 124, 125, I72ff., 

213, 272, 280, 283, 284 
(Local), 2 7 2ff. 

Law Officers, 236 

Law Officers Department, 1 1 7 

Leadership, 12, 45, no, in, 112, 
125, 127, 145, 167, 168, 171, 
174, 179, 187, 190, 192, 193, 
197, 203, 214, 216, 268 

League of Nations, 44, 113, 220 

Leasehold, 24, 25, 261 

Leeds, 243 

Legal Sanction, 68, 69 

Legal Theory, 65-66, 67, 86, 87, 
88, 105, 116, 188, 189, 206, 
208, 211, 214, 219, 223, 224, 
272 

Legislative Branch of Government, 
81,82,* 83, 95> l$off., 283, 284 

Legislative Control of Local Gov- 
ernment, 296, 297, 298, 299 



Legislative Functions (Loeal), 

272ff. 

Legislative Powers of the Execu- 
tive, 101, 104-105 

Legislative Procedure, 165-166, 
175, 176, 181, 273, 274, 275, 
295, 296 

Lewis, Sir George Cornewall 

. I4S 
Liberal Associations, 46, 47 

Liberal Council, 47, 48 
Liberalism, 32, 33 
Liberal Registration Association, 47 
Liberals, 33, 37, 39, 40, 41, 42, 
4 43, 44, 45, 47, 48, 159, 216 
Liberty, 8, 285 
Line Functions, 284 
Lloyd George, D., 216 
Local Accounts, 298 
Local Acts, 295, 297 
Local Agencies, 253ff. 
Local Audit, 298 
Local Autonomy, 300 
Local Communities, 9, 79, 84, 2 1 1, 



Local Councils, 66, 207, 2590% 
265, 266, 267, 268, 269, 
271, 272, 273, 274, 275, 
276, 277, 278, 280, 281, 
282, 288, 297 
Composition of, 259-263 
Election of, 262 
Eligibility to, 261-262 
Meetings of, 263 
Officers of, 264 

Organization of, 259, 263-265 
Renewal of, 261 
Size of, 260-261 
Term of, 261 
Local Councillors, 260, 261, 262, 

264, 265 
Local % Courts, 79, 230, 237, 242, 

243, 258 

Local Government, 10, 39, 71, 
132, 208, 2$2fF. 



319 



Local Government, Administrative 

Control of, 297-299 
Agents and Organs of, 258!?. 
Central Contror of, 274, 278, 

279-280, 292, 296-300 
Functions of, 272ff. 
Local Government Act of 1929, 

279, 280 

Local Government Board, 117, 290 

Local Legislatures, 259!?. 

Local Loans, 278, 298, 299 

Local Register, 263 

Local Self-Government, 207, 211, 

280, 296, 299, 300 

Local Service, 269-271, 276, 282 
Loca} Voters, 295, 300 ***** 
Lodgers, 25, 263 
"Log Rolling," 185 
London, 83, 140, 141, 142, 225, 
240, 242, 243, 257, 258 

Bishop of, I 52 

University of, I57n. 
"Long Ballot," 163 
Lord Advocate for Scotland, 1 1 5 
Lord Chairman of Committees, 

169 
Lord Chancellor, inn., 112, 113, 

166, 180, 194, 233, 234, 235, 

236, 237, 240, 241, 243, 249 
Lord Chancellor's Office, 1 1 7 
Lord Chief Justice, 234, 235, 246, 

249 

Lord High Admiral, 116 
Lord High Treasurer, 117 
Lord Lieutenant, 243, 267 
Lord Mayor, 263, 266 
Lord President of the Council, 113 
Lord Privy Seal, 113 
Lords of Appeal in Ordinary, 152, 

I53> *3.3 235 

Lords Justices of Appeal, 235, 242 
Lords Spiritual, 151, 152, 153, 173 
Lords Temporal, 151,. 152, 173 
Louis XIV, 74, 95 
Lowell, A. L., 69, 70, 148 



Lower Clergy, 85 
Luxuries, 291 



Macaulay (Lord), 135 

MacDonald, R., 131, 145 

Machinery of Government Com- 
mittee of 1918, 121 

Magna Carta, 64, 80, 87 

Maitland, F. W., 305 

Manchester, 243 

Mandated Territories, 219, 231 

Mark Twain, 5 

Massachusetts, 83 

Master of the Rolls, 235, 236, 242 

Masters in Chancery, 82 

May, T. E., 305 

Mayor, 161, 260, 261, 262, 263- 
264, 266, 267, 272, 282, 
288 
"Strong," 265, 266, 267, 274 

Medley, D. J., 305 

"Merit System," 134, 143 

Metropolitan Borough, 258, 259 

Metropolitan Borough Council, 259 

Metropolitan Police District, 258, 
288 

Michigan, 9 

Middle Ages, IO, 130, 229 

Middle Class, 25 

Militia, 267 

Mill, J. S., 135 

Miners, 25 

Minister of Agriculture and Fish- 
eries, 114 

Minister for the Coordination of 
Defence, 114, 121 

Minister of Health, 110, 114 

Minister of Labour, 114 

Minister of Pensions, 110, 114 

Minister of Transport, 110, 114 

Ministerial Responsibility, 123, 
124, I27ff., 137, 147, 148, 197, 

199, 2OI, 208, 215, 221, 222, 
227, 228, 267, 268, 28O, 299 



320 



INDEX 



Ministers, 38, 99, 102, 103, 104, 
105, 109, no, in, 112, 
113, 114, us, n6, 120, 

121, 122, 123, 126, 127, 

128, 129, 130, 131, 136, 
145, 146, 147, 148, 156, 

179, 191, 200, 201, 204, 

235, 280, 296, 299 

Salaries of, inn. 

Without Portfolio, 1 1 3 
Ministry, 109, ill, 114, 115, 
127, 129, 132, 156, 168, 
169, 178, 193, 199, 200, 

202, 203, 205, 214, 215, 

236, 268, 272 

of Agriculture and Fisheries, 1 1 7 

of Health, 117, 132, 140, 274, 
290, 298 

of Labour, 117, 133, 140 

of Pensions, 117, 133 

of Reconstruction, 1 2 in. 

of Transport, 117, 290 
Model' By-laws, 298 
Model* Parliament, 8 5 
Monarchy, 8, 34, 43, 72, 86, 87, 

95> 98> losff. 
Monmouth, 154, i7On. 
Motions, 176, 177, 178, 1 80, 182 

for Adjournment, 204 

for Resolution, 203-204 

for Returns, 201 
Municipal Boroughs, 256, 257, 

290 
Municipal Corporations, 255, 256, 

293 
Municipalities, 10 

Municipal Trading, 277, 285, 287, 

291 
Mutiny (Indian), 227 



Napoleon, 39 
Nation, 13, 14, 15, 106 
National Constabulary, 288 
Nationality, I3ff., 27, 29 



Nationality and Status of Aliens Act, 

15 

Nationalization, 44 

National Liberal Federation, 47 
National Register, 27, 46, 47, 161, 

263 

National Voters, 300 
Native States, 226, 228 
Naturalization, 13, 15, 16 
Navy, 101, 121, 191, 225 
New Despotism, 249 
Newfoundland, 219, 221 
Newspapers, 171, 295 
New York, 9 
New Zealand, 219, 221 
Nineteenth Century, 9, 12, 37, S~ 

88, 134, 135, 219, 229, 232, 

233, 241, 295 
Nominations, 161 
Nonconformists, 34 
Nonhercditary Peers, 152 
Non - Sovereign Law Making 

Bodies, 66, 105 
Norman Conquest, 7, 9, 71, 72, 

73> 78> 79> Bi, 83, 86, 246, 

247 

Normans, 1 1 , 71 
Northern Ireland, 8, 1 1, 142, 154, 

206, 207, 208, 232 
North Sea, 8 
Notice of Motion, 176, 179, 180, 

200, 201, 203 

Obstruction, 169, 181, 182 
Occupiers, 25, 28, 262, 277 
Office of Works, 117, 133 
Opposition, 32, 129, 161, 168, 

169, 171, 177, 178, 182, 199, 

203, 205, 299 
Oral Questions, 200, 204 
Order (By House of Commons), 

176, 177 
Orders in Council, 135, 136, 137, 

156, 232, 234, 274 
Ordinary Council, 119, 120 



INDEX 



321 



Ottawa Conference, 222 
Oxford, 14 

Oxford University, 142, I57n. 
Oyer and Terminer, 245 

"Paramountcy," 226 

Pardoning Power, 93, 104 

Parish, 10, 46, 257, 259, 263, 277, 

290, 295 

Councils, 259, 260, 261, 262 
Meetings, 259, 262, 263 
Urban, 257 

Parliament, 15, 32, 33, 36, 38, 40, 
41, 42, 43, 46, 48, 60, 61, 
62, 63, 64, 65, 66, 67, 83, 
84, 85, 86, 88, 94, 95, 96, 
97, 98, 99, 100, 104, 105, 
106, 1 1 in., 112, 1 16, 1 19, 
124, 125, 126, 127, 128, 
129, 130, 131, 136, 144, 
148, 150, 153, 154, 157, 
158, 163, 164, 165, 167, 
168, 169, 171, 172, 173, 
174, 1 80, 18 1, 184, 185, 
186, 187, 189, 190, 191, 
195, 196, 198, 199, 200, 

202, 204, 206, 2O7, 2O8, 

210, 211, 213, 219, 223, 

224, 225, 226, 227, 232, 

233, 236, 244, 247,^249, 

255, 263, 265, 268, 269, 

272, 275, 278, 280, 292 

295, ^ 296, 298 

Composition of, 15 iff. 
Functions of, I72ff. 
Officers of, 166-168 
Organization of, 1648". 
Powers of, 2o6ff. 
Privileges of, 164 
Sessions of, 104, 164, 165 
Structure of, 1 5off. 
Summoning of, 104, 165 
Term of, 154 
Parliament Act of 1911, 61, 154, 



Parliamentary Counsel, 177 
Parliamentary Debates, 171 
Parliamentary Government, 106, 
121, 125, 126, 127, 128, 129, 
130, 156, 167, 179, 199, 200, 

222, 28O, 28l 

Parliamentary Party, 48, 168-169 
Parliamentary Secretaries, 114, 115, 

117, 132 

Parnell, C. S., 181 
Partial Renewal, 155 
Party Funds, 48 
Party Organization, 45 ff. 
Party Programmes, 41 ff. 
Patriotism, 6 

Patronage, 133, 136, 143 
Patterson, C. P., 301 
Paymaster General, 114, 198 
Peel, Sir Robert, 39 
Peerage, 83, 151, 166 

of England, 1 5 2 

of Great Britain, 152 

of Ireland, 152 

of Scotland, 152 

of the United Kingdom, 152 

Ranks of, 153 

Peers, 29, 151, 156, 217, 233, 263 
Percentage Grants, 279 
Permanent Secretaries, 132, 138, 

H3 

Permissive and Mandatory Powers, 

297 

"Petitioners," 36 
Petition of Right, 64 
Petty Jury, 245 

Petty Sessions, 243, 244, 245, 246 
Petty Sessions Districts, 244 
Philadelphia Convention, 58 
Pitt, William (Elder), 39, 64 
Pleas of the Crown, 80 
Plurality, 156, 158, 159 
Plural Voting, 28 
Pocket Boroughs, 24n., 157, 158 
Police, 270, 279, 287, 288, 289, 

298 



322 



INDEX 



Political Parties, 3Off., 88, 106, 
no, in, 126, 127, 131, 

*33> !5 8 > *59> * 6l l66 > 
168, 169, 211, 216, 286 

Central Offices of, 47, 48 

of the Centre, 42 

History of, 35ff. 

of the Left, 32, 33, 34, 37, 42, 

43 

Local Associations of, 46, 47 
of the Right, 32, 33, 34, 37, 

42 

Political Sanction, 127 
Polling, 162, 163, 262 
Pollock and Maitland, 305 
Population, 6, nff., 13, 219, 220, 

226, 253, 256, 257, 258, 259, 

263, 279 

Post Master General, no, 114 
Post Office Department, 117, 132, 

139, 140 

Potential Law, 273 
Power of Government, 86, 95, 

100, 101, 256, 292, 294, 295, 

296 

"Precept," 277 
Prerogative, IOO, 104 
President of the Board of Educa- 
tion, 114 
President of the Board of Trade, 

I IO, 1 14 
President of Probate, Divorce, and 

Admiralty, 235 
Press, 49 
Prime Minister, 102, 103, 105, 

iiofL, 112, 113, 117, 1 20, 

121, 122, 123, 128, 131, 167, 
191, 202, 2l6, 222, 235, 236, 
267 

Primogeniture, 96 

Prince of Wales, 8, 97, 99n. 

Princes of the Royal Blood, I53n. 

Princess Mary, 97 

Private Law, 6 1 

Private Legislation, 170 



Private Members, 129, 175, 176, 

}11 
Privy Council, 82, 104, 109, 115- 

116, 117, 119, 120, 231-232 
Prize Courts, 232 
Probate, 238 
Professional Classes, 45 
Proportional Representation, 159- 

160 

Prorogation, 104, 164, 165, 204 
Protection (Function of), 287, 288, 

289, 290, 291 
Protectionism, 45 
Protectorates, 16, 231 
Protestants, 12, 96, 98 
Provisional Orders, 296 
Provisional Orders Confirmation 

Act, 296 

Public Assistance, 287 
Public Finance, 204, 298 

Administration of, 172, 1858"., 

213, 215, 272, 280, 283 
Public Finance (Local), 2,70 

Administration of, 275fF. 
Public Good, 31 
Public Health, 249, 270, 283, 287, 

289, 290, 298 
Public Law, 61 
Public Libraries, 291 
Public Opinion, 109, 154, 155, 

189, 209, 210, 211, 213, 214, 

216, 218, 286 
Public Works, 44, 283 
Puisne Judges, 234, 235 
Punchy 25 

Punishment, 230, 231 
Purchasing, 284 

Quarter Sessions, 243, 245, 246, 

267 

Queen, 83, 95, 96, 97, 98 
Queen's Bench Division (High 

Court), 234 

Queen's College, Belfast, 15711. 
Quorum, ii;, IQQ, 233 



INDEX 



323 



Race, 14, 226 

Rates, 262, 276, 277, 278 

Real Property, 276 

Rebellion, 87 

Recorders, 243, 245 

Redlich, J., 1 8 in. 

Redress of Grievances, 173 

Reform Bill of 1832, 22, 24, 25, 

39, 46, 157, 158 
Regency, 98 
Regime, 33, 34, 36, 42 
Registration Officials, 27, 263 
Religion, 14, 226 
Renan, E., 14 
Reorganization Committee, 139, 

142, 143 
Report Stage, 176, 179, 180, 181, 

183, 185 
Representation, 24, 42, 84, 151, 

152, 153, 154, 157, 158, 159, 

160, 1 86, 213 
Representation of the People Act 

of 1867, 25, 39, 46, 158 
Representation of the People Act 

of 1884, 26, 158 
Representation of the People Act 

of 1918, 21, 26, 27, 28, 156- 

157, 160 
Representation of the People Act 

of 1928, 21, 26, 28 
Representative Government, 221, 

227 
Representative Peers, 153, I $6n., 

161 

Republicanism, 43, 98, 106 
Residence, 261 
Resignation, 127, 128, 130, 131, 

199, 215, 281 

Return ing Officers, 29, 161,162,267 
Revenue, 188, 189, 190, 227, 275, 

276,^277 
Revolution 

American, 39, 220 

French, 25, 39, 88, 248 

Industrial, 24, 118 



Richard I, 78 

Richard II, 97 

Right Honourable, 115, 26611. 

Ritchie, Miss R., 301 

Roads, 287, 290 

Roman Catholic Church, 36, 37 

Roman Catholics, 12, 97 

Roman Law, 15, 81, 82 

Romans, 1 1 , 171 

Rotten Boroughs, 24n., 157 

Roundheads, 36 

Round Table Conferences, 228 

Royal Assent, 105, 180 

Royal Commissions, 180, 202, 227 

Royal Family, 103, 107 

Royal Household, 99, no, 1 12, 

H5 124 

Royal Proclamation, 164 
Rule of Law, 247, 248, 249 
Rules of Procedure, 165, 169, 181, 

182, 190, 263 
Runnymede, 87 
Rural District, 10, 257, 259, 263, 

277, 290 
Rural District Councils, 260, 261 

Sale Value, 276 

Sanitary Districts, 256 

Saxons, 1 1 

School-leaving Age, 44, 146 

Scotland, 8, 9, 10, 11, 12, 36, 45, 
85, 154, 206, 207, 208, 232 
Union with, 64, 151, 152 

Sea Lords, 1 1 7 

Second Division Clerks, 141 

Second Reading, 176, 177, 178, 
181, 183, 184 

Secretaries of State, 112, 113, 116 
Air, 1 14 

Colonies, 113, 220, 222, 225 
Dominion Affairs, 114, 219, 221 
Foreign Affairs, ui, 113 
Home Affairs, 16, 102, 104, 

110, 113, 220, 236, 298 
India, 114, 222, 226 



3*4 



INDEX 



Secretaries of State, Scotland, 114, 
116 

War, 114 

War and the Colonies, 220 
Self Government, 6, 45, 226, 253, 

254.259 

Separation of Powers (Doctrine of), 

125, 265 

Sergeaqt-at-Arms, 168 
Seventeenth Century, 9, 33, 88, 

120, 130, 163, 169-170, 186 
Seventh Century, 72 
Sewage Disposal, 289 
Shakespeare, 3 
Shaw, B., 40 
Sheriff, 76, 161, 267 
Shires, 9, IO, 255 
Simon Commission, 228 
Simon de Montfort, 84 
Sixteenth Century, 88, 169, 243 
Small Council, 83 
Social Democratic Federation, 40 
Socialism, 40, 43, 44, 118, 286, 

291 

Social Justice, 35, 44 
Social Welfare, 291 
Solicitor General, 114 
Solicitor General for Scotland, 115 
Sophia (Princess), 96 
Southern Ireland, 9, 154, 206, 221 
Southern Rhodesia, 219, 221 
Sovereignty of Parliament, 62, 63, 

88, 154, 189, 206, 2o8f7., 211, 

212 
Speaker of the House of Commons, 

166, 167, 170, 179, 180, 181, 

182, 183, 201, 202, 204, 215 
Specialization, 76, 77, 240, 248, 

268 

Special Legislation, 185 
Speech from the Throne, 105, 165, 
202, 203 

Address in Reply to, 202, 203 
Spencer, Herbert, 77 
Spheres of Influence, 219 



"Spoils System," 133, 134, 271 

Staff Functions, 284 

Stages of Parliamentary Procedure, 

296 

Standing Orders, 165, 174, 176, 
177, 200, 204 

(Local), 263, 265, 274 
State, 6, 7, 87, 95, 188, 189, 248, 

H9> 253 

Statute Law, 60, 65, 66, 67, 112 
Statute of Westminster of 1931, 96, 

98, 98n., 224 
Statutes, 60, 6 1, 62, 63, IOI, 112, 

151, 294 

Statutes of the Realm, 64 
Stephen (King)^78, 79 
Stipendiary Magistrates, 243, 244 
Streets, 290 
Structure of Government, 41, 59, 

60, 61, 67, 68, 74, 75, 76, 77, 

86, 93, 95, 101, 118, 119, 253, 

256, 270, 283, 284 
Stuarts, 1 20, 130 
Stubbs, W., 305 
Succession to the Throne, 36, 38, 

67, 96, 98 
Suffrage, 2 iff., 26ff., 64, 89, 144 

History of, 22ff. 

Qualifications for, 161 

Woman, 26, 28, 47 
Summary Jurisdiction, 244, 245 
Superannuation Acts, 136 
Supplementary Questions, 201 
Supreme Court of Judicature, 233, 

235, 236 

Taswell-Langmead, T. P., 305 

Taxation, 44, 186, 187, 189, 190, 

195-196, 197, 276, 277 
Taxes, 76 

Territory, 6, 7f7., 13, 16, 2c^ 
Teutonic Tribes, 9, n, 71, 72, 

IOI 

Third Reading, 176, 180, 181, 
183, 185 



INDEX 



325 



1 mrieenui Century, 8, 78, 80 

"Time Table," 182 

Tocqueville, Alexis de, 53, 56 

Tories, 35, 36, 37, 38, 39 

Torts, 231 

Town Courts, 259 

Town Planning, 249 

Towns, 256 

Townships, 10 

Trades Class, 25 

Trades Unions, 40, 44, 45, 46, 48, 
271 

Trades Unions Congress, 48 

Treasury, 116, 119, 137, 138, 144, 
145, 177, 190, 191, 192, 
193, 194, 195, 197, 198, 
276 

Financial Secretary of, 199 
Permanent Secretary of, 138 

Treasury Board, 1 1 7 

Treaties, 103, 220 

Trevelyan, Sir Charles, 135 

Trial by Ordeal, 80 

Tudors, 117, 119, 163 

Tuns, 10 

Twelfth Century, 78, 80 

Twentieth Century, 73, 75, 86, 88 

Uhl,R., 301 

Ultra Vires y 274, 294, 296, 297 
Under Secretaries of State, 112, 

114, 132 

Unemployment, 1 1 3 
Unionists, 40, 57 
Union of South Africa, 219, 221 
United Kingdom, 8, 9, n, 12, 16, 

96, 106, 208, 219, 221, 224 
United States, 10, 15, 57, 58, 59, 
64, 69, 8 1, 94, 102, 1 06, 
124, 125, 126, 



179, 185, 
224, 248, 
274, 276, 
298, 299 



158, 
209, 
264, 



163, 

2IO, 

265, 
289, 



144* 
167, 

212, 
267, 
296, 



United States, City Government in, 

265, 266 

City Manager in, 264, 266, 267 
Congress of, 61, 62, 65, 126, 

166, 209, 211, 212, 265 
Constitution of, 56, 58, 59, 61, 

65, 126 

County Government in, 267 
County Manager in, 264 
House of Representatives in, 61, 

166 
Mayor-Council Government in, 

265 

President of, 94, 102, 265 
State Constitutions in, 58, 65 
State Legislatures in, 65, 209, 

212 

States in, 299 
Supreme Court of, 57 
Universities, 28 

English Provincial, I57n. 

Scottish, 1 57 

University College, London, 67n. 
University Register, 28 
Unopposed Returns, 201 
Upper Clergy, 85 
Urban District, 10, 256-257, 263, 

277, 290 
Urban District Councils, 260, 261 

"Veto," 266, 274 

Viceroy, 226 
Victoria (Queen), 222 
Votes on Account, 195 



Wade and Phillips, I2n. 
Wales, 8, 9, 10, II, 12, 45, 
i7On., 206, 207, 208, 
237, 240 

University of, I57n. 
Walpole, Sir Robert, 39, no 
Wapentakes, 10 
War Cabinet, 122 
Wards, IO, 46, 47, 260, 262 



154, 
232, 



INDEX 



Water Supply, 289, 2QO 
Webb, S., 40, I47n. 
Wells, H. G., 40 
Westminster, 80, 206, 207, 208, 
212, 219, 223, 224, 225 

Pklace of, 167 
West Saxons, 71, 72 
Whigs, 35> 36, 37> 38> 39 
Whips, 117, 169 

Government, 169, 183 

Opposition, 183 
Whitley Councils, 138 

National, 138, 139 
William the Conquerdr, 71, 74,*75> 

78, 79, 80, 10 1 



William II, 78 

William and Mary, 37-38, 88, 96 

i6 S 

Winchester, Bishop of, 152 
Witan, 72, 73, 75, 83 
Workmen's Compensation Act, 23 $ 
World -War, 26, 28, 39, 40, 41 

113, 118, 122, 125, 139, 222 

225 

Writs, 82 
Written Questions, 200 

York, 85, 266n. 

Archbishop of, 152 
Yorkists, 36